^^^^^^^^^^^^^^^^Prf^r^^fr^^^^^^^^^^^^^^^^^l 

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IMM 

UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


ARTHUR  POOLE  &  CO. 

TORONTO  -  ONT. 


THE  LAW 


OF 


AUTOMOBILES 


SECOND  edition; 


BY 

XENOPHON  P.  HUDDY,  LL.  B. 


OF  THE  NEW  YORK  BAB 


ALBANY,  N.  Y. 

MATTHEW  BENDER  &  COMPANY 

1909 


Copyright,  1906, 
By  MATTHEW  BENDER  &  COMPANY. 


Copyright,  1900, 
By  MATTHEW  BENDER  &  COMPANY. 
CI 


3^4  \^  (o 


^ 


^ 


First  Edition. 


TO 
MY  WIFE 

WHO  IS 

MY  GREATEST  AND  WISEST  COUNSELOR. 


PREFACE. 

FIRST  EDITION. 

The  appearance  of  a  new  means  of  transportation — the 
automobile — on  the  pubHc  streets  and  highways  is  creating 
a  far-reaching  influence,  not  only  on  industry  and  com- 
merce, but  also  on  legislation.  The  attention  of  legislative 
bodies  has  been  taken  by  the  twentieth  century  conveyance 
to  such  an  extent  that  there  now  exists  much  important 
statutory  law  concerning  automobiles  and  their  operation, 
as  will  be  seen  from  the  pages  of  this  book. 

The  legislation  in  the  United  States  concerning  motor- 
ing is  not,  however,  all  of  a  serious  character.  The  various 
statutory  provisions  are  exceedingly  interesting  from  many 
points  of  view.  Some  of  the  provisions  are  really  amusing. 
Thus,  the  legislature  of  Kansas  has  shown  its  kindly  feel- 
ing towards  motoring  by  actually  incorporating  into  its 
legislation  a  provision  regulating  the  operation  of  automo- 
biles which  is  worth  twice  reading,  as  follows : 

"  Nothing  in  this  section  shall  be  construed  as  in 
any  way  preventing,  obstructing,  impeding,  embarrass- 
ing or  in  any  other  manner  or  form  infringing  upon 
the  prerogative  of  any  political  chauffeur  to  run  an 
automobilious  band-wagon  at  any  rate  he  sees  fit,  com- 
patible with  the  safety  of  the  occupants  thereof;  pro- 
vided, however,  that  not  less  than  ten  nor  more  than 
twenty  ropes  be  allowed  at  all  times  to  trail  behind 
this  vehicle  when  in  motion,  in  order  to  permit  those 
who  have  been  so  fortunate  as  to  escape  with  their 


yi  PKEFACE. 

political  lives,  an  opportunity  to  be  dragged  to  death; 
and  provided   further,  that  whenever  a  mangled  and 
bleeding  political  corpse  implores  for  mercy,  the  driver 
of  the  vehicle  shall,  in  accordance  with  the  provisions 
of  this  bill,   'throw  out   the  life-line.'"      (See   Kan. 
Laws  of  1903,  ch.  67,  p.  113.)     Kansas  is,  no  doubt, 
on  the  right  road. 
Not  only  have  the  law-making  bodies  enacted  laws  in 
reference  to  the  motor  car  and  automobiling.  but  the  re- 
ported judicial  decisions  of  the  highest   courts  of  record 
and  other  courts  in  many  jurisdictions  are  multiplying,  and 
have  accumulated  to  such  an  extent  that  many  questions  of 
vital  importance  have  been  decided. 

\'ery  true,  many  of  the  cases  merely  have  called  for  the 
application  of  established  rules  of  law,  in  dealing  with  the 
motor  vehicle ;  but  there  have  been  decided  numerous  points 
of  special  application  to  the  automobile  and  its  operation 
on  the  public  avenues  of  travel,  of  whicli  the  up-to-date 
layman,  lawyer,  and  judge  should  be  cognizant  if  he  is  to 
keep  abreast  with  the  progress  of  scientilic  inventions  which 
are  bound  to  figure  in  litigation  and  to  occupy  a  prominent 
place  in  our  jurisprudence.  That  there  existed  a  necessity 
for  a  collection  of  all  the  law,  both  statutory  and  that  an- 
nounced by  the  courts  in  an  accessible  convenient  form,  is 
undoubted. 

The  encouragement  given  to  the  author  in  his  under- 
taking to  compile  this  work  by  gentlemen  prominently  in- 
terested in  automobiling  has  strengthened  his  belief  that 
a  work  of  this  kind  will  be  welcomed. 

Many  branches  of  the  law  are  being  affected  by  the 
horseless  carriage  figuring  in  litigation.  W'here  the  auto- 
mobile's permeating  influence  will  stop  is  beyond  prophesy. 
It  is  certain,  however,  that  the  motor  car,  including  every- 
thing connected  with  it,  is  bound  to  be  the  subject  of  a  vast 


PREFACE.  vii 

amount  of  litigation  in  the  future  and  legal  literature  will 
justly  devote  much  space  to  this  new  and  most  useful  means 
of  transportation.  The  motor  carriage  has  already  brought 
to  us  new  terms  and  new  ideas. 

This  book  is  compiled  for  the  use  of  the  layman,  lawyer, 
and  judge.  Its  purpose  is  to  present  all  the  legal  informa- 
tion on  the  subject  that  exists,  including  a  consideration  of 
all  the  reported  judicial  decisions  in  America  and  England, 
which  have  decided  questions  pertaining  to  the  automobile 
and  its  operation. 

The  work  also  treats  of  those  principles  and  rules  of  law 
closely  allied  to  the  operation  of  automobiles  and  which 
concern  subjects  other  than  the  motor  carriage,  such,  for 
example,  as  the  law  of  the  road  as  applied  to  vehicles 
generally. 

An  accurate  compilation  of  all  the  state  automobile  laws 
in  the  United  States,  and  also  the  English  Motor  Car  Act, 
are  to  be  found  in  Part  Two  of  the  work. 

With  the  hope  that  this  work  may  prove  of  assistance 
to  those  interested  in  the  automobile,  the  author  respectfully 
submits  it  for  the  consideration  of  the  layman  and  the  legal 
profession. 

X.  P.  H. 

New  York  City,  June  i,  1906. 


Second  Edition. 


TO 
MY  WIFE. 


PREFACE. 

SECOND  EDITION. 

It  is  with  pleasure  and  some  little  pride  that  the  author 
presents  the  second  edition  of  this  work  to  the  public. 

Since  the  publication  of  the  first  edition  of  this  book,  the 
law  concerning  the  subject  has  developed  to  a  marked  ex- 
tent. Numerous  interesting  and  important  questions  have 
been  set  at  rest  by  the  courts  of  highest  resort,  and  a  large 
amount  of  legislation  governing  automobiling  has  been  en- 
acted. The  necessity  for  the  writing  of  a  second  edition 
exists  because  of  the  increased  number  of  decisions  of  the 
courts  and  the  urgent  need  of  having  the  law  as  developed 
and  established  available  for  use  in  litigation.  The  first 
edition  was  so  well  received  that  it  is  a  gratification  to  feel 
that  the  present  edition  will  be  welcomed  with  more  en- 
thusiasm, since  it  is  considered  by  the  author  a  far  more 
valuable  and  useful  work,  and  is  not  in  any  sense  an  ex- 
periment. 

Two  striking  and  important  principles  of  law  concern- 
ing the  motor  vehicle  have  been  established  since  the  first 
edition  appeared. 

The  first  and  most  important  is  that  the  automobile  is 
not  an  agency  dangerous  per  se  and  to  be  classed  with  com- 
bustibles, explosives,  inflammable  substances,  fire  arms, 
vicious  animals  and  the  like.  All  of  the  courts  of  highest 
resort  before  which  this  question  has  arisen  have  been 
harmonious  in  their  decisions  supporting  this  view. 

xi 


zu 


PREFACE. 


The  second  important  question  which  has  been  settled  is 
that  the  owner  of  an  automobile  is  not  liable  for  the  acts 
of  another  to  whom  he  has  loaned  his  machine,  and  the 
owner  is  likewise  not  responsible  for  the  acts  of  his  chauf- 
feur who  commits  an  injury  when  driving  for  himself, 
even  though  the  employer  permitted  the  chauffeur  to  use 
the  motor  vehicle.  This  last  ruling  has  gone  almost  to  the 
limit. 

As  stated  in  the  first  edition,  this  work  is  written  for  the 
judge,  lawyer  and  layman,  and  it  is  the  author's  intention 
and  purpose  to  make  the  book  not  only  valuable  as  a  text- 
book on  the  law  relating  to  the  subject,  but  to  make  it  in- 
teresting reading.  The  Court  of  Appeals  of  Georgia,  in 
deciding  that  the  automobile  is  not  an  agency  or  a  machine 
dangerous  per  sc,  says : 

"  It  is  insisted  in  the  argument  that  automobiles  are 
to  be  classed  with  ferocious  animals,  and  that  the  law 
relating  to  the  duty  of  the  owners  of  such  animals  is 
to  be  applied.  It  is  not  the  ferocity  of  automobiles 
that  is  to  be  feared,  but  the  ferocity  of  those  who  drive 
them.  Until  human  agency  intervenes,  they  are 
usually  harmless." 

"  While  by  reason  of  the  rate  of  pay  allotted  to  the 
judges  in  this  State,  few,  if  any,  have  ever  owned  one 
of  these  machines,  yet  some  of  them  have  occasionally 
ridden  in  them,  thereby  acquiring  some  knowledge  of 
them;  and  we  have,  therefore,  found  out  that  there 
are  times  when  these  machines  not  only  lack  ferocity, 
but  assume  such  an  indisposition  to  go,  that  it  taxes 
the  limits  of  human  ingenuity  to  make  them  move  at 
all.  They  are  not  to  be  classed  with  bad  dogs,  vicious 
bulls,  evil  disposed  mules  and  the  like." — Lewis  v. 
Amorous,  59  S.  E.  Rep.  338. 


PREFACE.  xiii 

The  Court  of  Appeals  of  Georgia  speaking  through  Mr. 
Justice  Powell  is  both  right  and  wrong  in  the  above  asser- 
tions. That  the  automobile  is  not  dangerous  per  se  is  cor- 
rect, but  the  intimation  that  the  modern  motor  vehicle  is 
not  a  success  as  a  road  vehicle  is  erroneous,  since  the  auto- 
mobile has  already  proven  to  be  a  practical  vehicle.  The 
incorrect  statement  was  not  made  seriously.  The  author 
desires  to  thank  the  Horseless  Age,  for  the  valuable  assist- 
ance rendered  in  the  compilation  of  this  work.  The 
Law  of  Automobiles  is  fast  assuming  a  position  of  import- 
ance equal  to  the  law  governing  the  operation  of  street 
and  other  railroads.  Its  field  is  much  broader  than  these 
and  its  development  will  be  of  greater  magnitude. 

X.  P.  H. 
New  York  City,  April  i,  1909. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

DEFINITIONS  AND  GENERAL  CONSIDERATIONS. 


PAOB 


Sec.  1.  Definitions  in  general \ 

2.  Legal  definitions 5 

3.  Definitions  in  automobile  legislation 5 

4.  Automobile  a  vehicle 8 

5.  Automobile  a  carriage 10 


CHAPTER  II. 

HISTORICAL. 

Sec.  1.  Automobile  vehicle  of  modern  times , 18 

2.  Development  of  motor  carriage 19 

3.  Growth  of  law 19 

4.  Law  keeps  up  with  improvement  and  progress 21 

5.  Highways  open  to  new  uses 21 

6.  Tendencies  in  legislation 23 

7.  Tendencies  in  judicial  decisions 24 


CHAPTER  HI. 

NATURE  AND  STATUS  OF  AUTOMOBILE. 

Sec.  1.  Automobile  not  a  machine  only 26 

2.  Automobile  not  a  dangerous  machine 27 

3«  Motive  power  as  affecting  status 34 

XV 


Xvi  TABLE  OF  CONTENXa 

VASB 

Bbc.  4-  Advantages  over  animal-drawn  vehicles 35 

6.  Tendency  to  frighten  horses 35 

6.  Judicial  notice  of  characteristics 36 

7.  Classification  of  automobiles 87 

8.  Automobiles  as  carriers 38 


CHAPTER  IV. 
RIGHT  OP  AUTOMOBILES  TO  USE  HIGHWAYS  AND  STREETS. 

Bkc.  1.  Highways  defined 39 

2.  Roads  defined 40 

3.  Streets  defined 40 

4.  General  purposes  of  highways  and  streets 41 

5.  New  means  of  transportation 43 

6.  Equal  rights  of  automobiles  on  public  ways 45 

7.  Automobiles  have  no  superior  right  of  way 48 

8.  Rights  on  ferries  and  vessels 48 

9.  Exclusion  of  automobiles  from  highways. 49 

10.  Tolls 54 

11.  Compelling  privilege  of  using  road — Pleading 56 


CHAPTER  v. 
REGISTRATION  AND  LICENSING. 

Bbc.  1.  General  considerations 67 

2.  Registration  systems.    . . 58 

8.  Registration  by  corporations  and  partnerships 60 

4.  Traction  engines 61 

5.  Status  of  unlicensed  automobilist 61 

6.  Age  limit 61 

7.  Purpose  of  registration 64 

8.  Power  to  require  registration  and  license 65 


TABLE  OF  CONTENTS.  xvii 

PAOC 

Sec.  9.  Constitutional  law 69 

10.  Licenses 78 

11.  Operation  and  effect  of  license 80 

12.  Exemption  of  nonresidents 80 

13i  Exemption  based  upon  reciprocity 82 


CHAPTER  YI. 
OPERATION  ON  HIGHWAY— IN  GENERAL. 

Sec.  1.  Right  to  operate  on  the  highway 84 

2.  Care  in  operating — Restive  horses 85 

3.  The  law  of  the  road — in  general 88 

4.  Vehicles  meeting  and  passing 89 

5.  Rule  not  inflexible,  but  is  a  rule  of  negligence 91 

6.  Presumption  arising  from  disobedience 92 

7.  Where  one  traveler  overtakes  and  passes  another ...  93 

8.  Collision — Contributory  negligence  95 

9.  Rights  of  footmen  and  vehicles — Children  in  the  street 96' 

10.  Injury  resulting  from  fright    97 

11.  Roadworthiness  of  vehicle,  tackle  or  gearing 100 

12.  Street  crossings,  crossroads 100 

13.  Vehicles  standing  on  the  highway 101 

14.  Liability  of  owner  for  acts  of  person  operating  car 101 

15.  Speed  regulations 102 

16.  Injuries  resulting  from  defects  in  highway 104 

17.  Care  in  avoiding  defects — Contributory  negligence 104 

18.  Notice  of  defects — Notice  of  accident 105 


CHAPTEE  VII. 

RIGHTS,  DUTIES  AND  LIABILITIES  OF  AUTOMOBILE  DRIVERS. 

Sec.  1.  General  duties  of  drivers .' 107 

2.  Reasonable  care  expected  from  all 109 

3.  Due  care  in  driving 109 


xviii  TABLE  OF  CONTENTS. 

PAOI 

8bc.  4.  Care  in  avoiding  injury 109 

5.  Reciprocal  rights  and  duties 109 

6.  Operation  of  traction  eugines 112 

7.  Driving  on  crowded  streets 112 

8.  Unavoidable  accidents . , 112 

9.  Negligence  must  be  shown 113 

10.  Prima  facie  evidence  of  negligence 113 

11.  Drivers  must  anticipate  danger 113 

12.  Vehicles  left  standing  at  night 114 

13.  Towing  automobiles 114 

14.  Negligence 114 

15.  Evidence  of  due  care 115 

16.  Skidding iif) 

17.  Thoughtless  inattention 115 

18.  Legal  status  of  guest 116 

19.  Imputed  negligence 118 


CHAPTER  VIII. 

MEETING  AND  PASSING. 

Sec.  1.  Turning  to  the  right 121 

2.  Failure  to  seasonably  turn  to  right 122 

3.  Traveling  on  unfrequented  part  of  highway 122 

4.  When  half  of  road  need  not  be  given 123 

5.  Presumption  in  ca.se  of  collision , , .  123 

6.  Treble  damages  under  statute 124 

CHAPTER  IX. 

OVERTAKING  AND  PASSING-TURNING  CORNERS. 

Sec.  1.  Overtaking  and  passing 125 

2.  Applicul)ility  of  Statutes 120 

8.  Statute  may  be  read  to  jury 127 

4.  Turning  comers 127 

6.  Approaching  at  right  angle  crossings 127 


TABLE  OF  CONTENTS.  xix 

CHAPTEK  X. 
FRIGHTENING  HORSES. 

PAGE 

Sec.  1.  In  general • ^^^ 

2.  Notice  that  horses  take  fright 130 

3.  When  drivers  may  pass  a  horse 1^1 

4.  Runaway  horses ^"^^ 

5.  Noise ^^^ 

6.  Contributory  Negligence 1^^ 

7.  When  horses  are  beyond  control 134 

8.  Break  down  on  highway 134 

CHAPTER  XI. 

DUTY  TO  STOP  AUTOMOBILE. 

Sec.  1.  Duty  to  stop ^^^ 

2.  When  engine  must  be  stopped. .  - 136 

3.  Stopping  on  signal 13° 

4.  Signal  unnecessary 

5.  Construction  of  statute. 13''' 


CHAPTER  XII. 

PEDESTRIANS  AND  MISCELLANEOUS. 

Sec.  1.  Pedestrian's  rights 13^ 

2.  Pedestrians  crossing  streets 14" 

3.  Rights  of  street  laborers 1"^'^ 

4.  Reasonable  speed l^"' 

5.  Speed  at  night 1^3 

6.  Conviction  of  speeding 1** 

7.  Carrying  lights !■** 

8.  Driving  on  railway  tracks 1^^ 


Xi  TABLE  OF  CONTENTS. 

CHAPTER  XIII. 

PROOF  OF  SPEED. 

Sbc.  1.  Evidence  of  Chauffeur  or  Operator 149 

2.  Observers  may  give  estimates 150 

3.  Qualifications  of  observers 152 

4.  Weight  of  evidence 153 

5.  Incorrect  estimates 153 

6.  Imagination 154 

7.  Line  of  vision 154 

8.  Time  consumed 155 

9.  Noise 155 

10.  Facts  incompatible  with  estimates 156 

11.  Distance , . . .  157 

12.  Speed  at  one  place  inadmissible  as  to  speed  at  another 157 

13.  Effect  of  bias 157 

14.  Burden  of  proof 159 

15.  Evidence  under  English  law 159 

16.  Evidence  that  vehicle  went  fast 160 

17.  High  rate  of  speed 160 

18.  Comparative  amount  of  noise 161 

19.  Distance  in  which  object  could  be  seen 161 

20.  Meeting  horses 161 

21.  Pas.senger  in  automobile 162 

22.  Summary  and  conclusion 162 


CHAPTER  XIV. 
L^NLAWFUL  SPEEDING  ON  THE  PL^LIC  HIGHWAYS. 

Bbc.  1.  Common  law  misdemeanor 163 

2.  Misdemeanor  under  automobile  laws 165 

3.  Fa.ster  than  common  traveling  pace 166 

4.  Criminal  responsibility  for  agent's  driving 167 

5.  Liability  of  parties  not  driving 167 

6.  Persons  in  tonneau 167 


TABLE  OF  CONTENTS.  xxi 

PASS 

Skc,  7.  Aiding  and  abetting 168 

8.  Identification  of  offender 168 

9.  Prosecution  on  more  than  one  charge 168 

10.  Violation  of  municipal  ordinance 169 

11.  Obstructing  police 169 

12.  Excuses  for  speeding 170 

13.  Breaking  speed  laws  in  cases  of  "  necessity." 172 

14.  Intention 173 

15.  Ignorance  of  the  law 173 

16.  Graduation  of  punishment   176 

17.  "What  a  conviction  means 177 


CHAPTER  XY. 
DANGEROUS  AUTOMOBILE  DRIVING. 

Sec.  1.  Abolishment  of  arbitrary  speed  limits 178 

2.  What  is  dangerous  driving 179 

3.  Negligent  v.  dangerous  driving 179 

4.  Criminal  aspect  of  dangerous  driving 181 

5.  Manslaughter 186 

6.  Instances  of  criminal  driving 186 

7.  Unusual  speed 187 

8.  Killing  passenger 188 

9.  Accidental  killing 188 

10.  Thoughtless  inattention 188 


CHAPTER  XVI. 

DEFENDING  SPEED  CASES. 

Sec,  1.  In  general 191 

2.  Arrests 192 

3.  Extenuating  facts  in  defense ....'. 193 

4.  Preparing  the  defense ^ 194 

5.  Making  tests 195 


zxu 


TABLE  OF  CONTENTS. 


PAGE 

Sec.  6.  Identity  of  defendant 196 

7.  Arrests  at  night 197 

8.  Bicycle  policemen 198 

9.  Points  in  defending  speed  cases 198 

10.  Illegal  police  methods 201 

11.  On  stop  watch  testimony 202 


CHAPTER  XYII. 

THE  GARAGE  AND  GARAGE  KEEPER. 

Sec.  1.  Garage  defined 205 

2.  Garage  not  a  nuisance 205 

3.  Status  of  garage  keeper 206 

4.  Garage  keeper's  rights 206 

5.  Liabilities  of  garage  keeper 207 

6.  Keeping  and  selling  gasolene 208 

7.  Liability  for  articles  stolen 210 

8.  Repairs 212 


CHAPTER  XYIII. 

THE  HIRE  OF  AUTOMOBILES. 

Sec.  1.  General  considerations 215 

2.  Ordinary  care  of  hirer 216 

3.  Liability  for  servant's  acts 216 

4.  Unlawful  acts  committed  by  third  parties 217 

5.  Unlawful  .sale  by  hirer 217 

6.  Duties  and  rights  of  owner 217 

7.  Keeping  in  repair 218 

8.  Rights  of  hirer 218 

9  Duties  of  hirer 219 

10.  Termination  of  hiring 219 


TABLE  OF  CONTENTS.  xxiii 

PAGE 

Sec.  11.  Surrender  and  return  of  automobile 220 

12.  Compensation  for  hire 220 

13.  Deviation  from  agreed  route 220 


CHAPTER  XIX. 

THE   CHAUFFEUR. 

Sec.  1.  Chaflfeur  defined 233 

2.  Origin  of  term 225 

3.  Chauffeur's  status 225 

4.  Liability  of  master  for  chauffeur's  acts — in  general 225 

5.  Chauffeur  acting  contrary  to  authority 226 

6.  Duties  of  chauffeur 229 

7.  Amount  and  degree  of  care 230 

8.  Rights  of  chauffeur 233 


CHAPTER  XX. 

CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER. 
(See  Chapter  XIX.) 

Sec.  1.  General  considerations 234 

2.  When  the  employer  is  liable 243 

3.  Chauffeur  teaching  operation  of  automobile 243 

4.  Responsibility  under  English  act 244 

5.  Presumption  of  authority 244 

6.  Ownership  of  vehicle 244 

7.  "What  must  be  shown 245 

8.  Chauffeur  driving  for  himself 247 

9.  When  relation  of  master  and  servant  does  not  exist 248 

10.  Authority  to  purchase  supplies 251 

11 .  Pleading 253 


XXiy  TABLE  OF  CONTENTS. 

CHAPTER   XXI. 

THE  MANUFACTURER  OF  AUTOMOBILES. 

PAGE 

SbC.  1.  General  considerations 254 

2.  The  mauufacturer's  status 255 

3.  Quality  of  cars  already  turned  out 255 

4  American  tendencies 255 

5.  Duties  and  responsibilities  of  manufacturer 256 

6.  Equipment 262 

7.  Engine  not  a  brake 265 

8.  Public  automobiles 265 

9.  Registration  of  manufacturers 266 

10.  Conclusion 267 

CHAPTER  XXII. 

TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE. 

Sec.  1.  Introductory 269 

2.  Historical 270 

3.  Definitions 270 

4.  No  exclusive  right  to  use  the  word  "  taxicab."  271 

,5.  The  taxicab  is  a  hackney  coach 271 

6.  Right  to  conduct  taxicab  service 273 

7.  Municipal  regulations 273 

8.  When  city  may  not  demand  license  fees 275 

9.  Rights  and  liabilities  of  proprietors  276 

10.  Articles  left  in  taxicabs 276 

1 1 .  Disputes  over  fares 277 

12.  Legal  rates  of  fare 277 

13.  Duty  to  carry  applicants 278 

14.  Operation  of  vehicles 279 

15.  Liability  of  passengers  for  negligence 279 

16.  Foreign  chauffeurs 281 

17.  Rules  and  regulations 281 

18.  Regulation  of  taximeters 281 


TABLE  OF  CONTENTS.  XXV 


CHAPTER  XXIII. 

SALE  OF  AUTOMOBILES— WARRANTIES  AND 
REPRESENTATIONS. 

PAOK 

Sec.  1.  Recovery  back  of  price *°^ 

2.  Automobile  unsatisfactory 286 

3.  "  Seller's  talk." 286 

4.  Recission  of  contract *° ' 

OQQ 

5.  Measure  of  damages '*°'' 

6.  Agencies 288 

7.  Commissions 


CHAPTER  XXJy. 

SAFETY  OF  ROADS  FOR  AUTOMOBILES. 

Sec.  1.  Rigbt  to  have  safe  roads 29o 

2.  Condition  of  roads  290 

3.  Liability  for  defective  highways 292 

4.  Duty  of  city  to  light  streets 292 

5.  Massachusetts  decision 293 


CHAPTER  XXV. 

AUTOMOBILE  LEGISLATION. 


Sec 


.  1.  General  considerations 295 


2.  Fairness  of  laws. 


295 


3.  Prohibiting  reckless  motoring 296 

4.  Uniformity  of  automobile  legislation 297 

5.  Nonresident  automobilists 298 

6.  What  may  be  expected  of  future  laws 298 

7.  Construction  of  statutes ^^^ 

8.  Implied  exceptions ^"" 

9.  The  smoke  nuisance • ""'■ 


XXVi  TABLE  OF  CONTENTS. 

CHAPTER  XXVI. 

FEDERAL  CONTROL  OVER  MOTORING. 

6ec.  1.  In  general 303 

2.  Powers  of  state  and  federal  governments 303 

8.  Regulation  of  internal  matters  belongs  to  state 304 

4.  Interstate  motoring 304 

5.  The  right  of  transit 310 


THE  LAW  OF  AUTOMOBILES. 


SECOND  EDITION. 


CHAPTER  I. 
DEFINITIONS  AND  GENERAL  CONSIDERATIONS. 

Sect.  1.  Definitions  in  general. 

2.  Legal  definitions. 

3.  Definitions  in  automobile  legislation. 

4.  Automobile  a  vehicle. 

5.  Automobile  a  carriage. 

6.  Other  definitions. 

§  1.  Definitions  in  general. 

The  term  automobile  is  the  generic  name  which  has  been 
adopted  by  popular  approval  for  all  forms  of  self-propel- 
ling vehicles  for  use  upon  highways  and  streets  for  general 
freight  and  passenger  service.  This  definition  should  not 
include  such  self-propelled  machines  as  steam  road  rollers 
or  traction  engines  designed  for  hauling  loaded  trucks  or 
vans  in  trains,  nor  such  vehicles  as  require  tracks  for 
operation.^    The  meaning  of  the  word  automobile  is,  con- 

1.  "  Automobile  "  defined. — The  New  International  Encyclopedia, 
vol.  II.,  pp.  271,  272. 

A  hybrid  adjective — substantive  (from  Greek  auto,  stem  of 
autos,  "self,"  and  Latin  mobilis,  "movable"),  adopted  as  a  generic 
term  for  self-propelled  vehicles  adapted  to  run  and  be  steered  on 
common  roads  and  to  carry  either  articles  or  passengers  other  than 
exclusively  for  their  own  use  or  guidance.  The  word  Is  quite  com- 
monly abbreviated  to  "auto"  simply;  while  a  devotee  of  the  new 

[1] 


3  THE  LAW  OF  AUTOMOBILES. 

taining  means  of  propulsion  within  itself;  self-propelling'; 

mode  of  locomotion  is  very  frequently  styled  an  "  autoist."  It 
is  sometimes  employed  also  in  its  original  adjective  sense  of 
"  self-movable "  to  form  self-explaining  compounds,  such  as  "  auto- 
mobile boat,"  and  the  like.     Int.  Motor  Cyc.  p.  37. 

Primarily  the  word  means  a  vehicle  designed  mainly  for 
transportation  of  persons  on  highways,  equipped  with  an  internal 
combustion,  hydrocarbon-vapor  engine,  which  furnishes  the  motive 
power  and  forms  a  structural  portion  of  the  vehicle.  Secondarily,  it 
is  used  as  synonymous  with  "  motor  vehicle,"  denoting  a  vehicle 
moved  by  inanimate  power  of  any  description,  generated  or  stored 
within  it,  and  intended  for  the  transportation  of  either  goods  or 
persons  on  common  highways.     Americana. 

Traction  eng^ine  included  under  Nexr  Hampshire  law. — 
Emerson  Troy  Granite  Co.  v.  Pearson,   (N.  H.  1906)    64  Atl.  582. 

"  An  automobile  is  not  a  work  of  art,  nor  a  machine  about 
which  there  can  be  any  very  peculiar  fancy  or  taste  but  it  is  not  a 
common,  gross  thing,  like  a  road-wagon  or  an  ox-cart."  Walker  v. 
Brout  Bros.  Automobile  Co.,  124  Mo.  App.  628,  642,  102  S.  W.  25. 

Automobilism. — The  science  which  treats  of  automobiles  and  their 
structure,  operation  and  applications,  and  of  other  matters  pertaining 
directly  and  indirectly  thereto.    Int.  Motor  Cyc.  p.  45. 

TVashing  automobile — domestic  use  of  water. — Water  supplied 
to  and  used  by  a  man  for  washing  a  motor  car  and  for  other  purposes 
in  connection  therewith,  the  motor  car  being  used  by  him  for  the 
purpose  of  his  profession  or  the  business  of  a  physician  and  surgeon, 
is  water  supplied  for  domestic  purposes  within  the  meaning  of 
English  Waterworks  Law.  Harrogate  Corporation  v.  MacKay,  Vol. 
2,  L.  Rep.,  K.  B.  Div.  1907. 

Automobiles  as  household  effects. — See  Hillhouse  v.  U.  S.  152 
Ped.  Rep.  163.  A  decision  was  rendered  by  the  United  States  Circuit 
Court  of  Appeals  on  January  14, 1909,  holding  that  American  owners  of 
foreign  touring  cars  returning  to  this  country  must  pay  duty  upon 
their  machines.  The  court's  decision  reverses  the  judgment  of  the 
lower  courts  and  the  action  of  the  General  Appraisers.  It  was 
rendered  in  a  case  involving  the  importation  of  an  automobile  which 
had  been  repaired  abroad.  The  practice  has  been  to  admit  the 
automobiles  of  returning  tourists  free  of  duty  as  household  effects. 
The  court  held  that  the  judgment  of  the  lower  court  that  only  the 
repaired  part  should  pay  duty  was  an  error,  and  added  that  the 
automobile  could  only  be  considered  an  entirety.  The  decision  held 
that  an  automobile  is  not  a  household  effect  within  the  meaning  of 
the  law. 


DEFINITIONS  AND  GENERAL  CONSIDERATIONS.  3 

as    automobile     car — an    automobile     vehicle    or    mech- 
anism.2 

The  term  *<auto"  is  an  abbreviation  of  the  word  auto- 
mobile, used  as  a  prefix  with  the  meaning  of  self-moving, 
self-propelling;  as  an  autocar,  an  autocarriage,  an  auto- 
truck, etc.,  an  automobile  car,  carriage,  truck,  etc.^ 

The  term  "car"  is  a  common  and  popular  expression 
designating  the  automobile,  and  when  used  in  connection 
with  other  words  of  a  written  instrument,  for  example, 
which  make  it  apparent  what  is  referred  to,  there  can  be  no 
question  as  to  the  interpretation.  The  automobile  is  prob- 
ably more  often  spoken  of  as  a  "car,"  than  otherwise. 
Such  a  use  of  the  word  has  made  its  application  to  the  auto- 
mobile correct  and  the  courts  are  bound  to  take  judicial 
notice  of  the  custom.  The  terms  "  machine  "  and  "  motor 
car  "  are  also  frequently  heard."* 

The  expression  "  motor  car  "  in  the  English  Motor  Car 
Act  of  1903,  means  the  same  as  the  expression  "  light  loco- 
motive "  in  the  principal  act  as  amended  by  the  1903  act, 
except  that,  for  the  purpose  of  the  provisions  of  the  law  of 
1903  with  respect  to  the  registration  of  motor  cars,  the 


2.  Means  of  propulsion  within  itself. — Web.  Int.  Diet.,  Supp., 
p.  19. 

The  term  means  "self-propelling;  self-moving;  applied  especially 
to  motor  vehicles,  such  as  carriages  and  cycles  of  those  types 
usually  or  formerly  propelled  by  horses  or  men.  An  autocar  or 
horseless  carriage."     Standard  Diet.  Addenda. 

3.  Auto.— Web.  Int.  Diet.,  Supp.,  p.  19. 

Auto  truck. — It  is  said  that  an  auto  truck  is  a  self-propelling  or 
self-moving  truck  adapted  for  heavy  grades.  Standard  Diet.  Addenda, 
The  term  is  more  accurately  applied  to  automobiles  used  for  com- 
mercial purposes  and  the  hauling  of  heavy  loads. 

4.  Car. — A  general  term  for  a  vehicle  of  a  type  which,  when 
horse-drawn,  is  called  a  "  carriage."     Int.  Motor  Cyc.  p.  97. 

An  autocar  may  be  said  to  be  an  automobile  vehicle  especially 
for  street  travel.     Standard  Diet.  Addenda. 


4  THE  LAW  OF  AXJTOMOBILES. 

term  "  motor  car  "  does  not  include  a  vehicle  drawn  by  an 
automobile.'^ 

The  term  *' motor"  is  commonly  used  to  designate  the 
automobile  as  a  whole,  and  the  word  "  motoring  "  is  also 
in  common  use  as  meaning  operating  or  driving  a  motor 
vehicle.  However,  unless  the  contrary  appears,  the  term 
"  motor  "  may  have  a  more  limited  application.  Thus  the 
word  "  motor  "  in  a  statute  empowering  street  railways, 
with  the  consent  of  the  municipal  authorities,  to  use  electric 
or  chemical  motors  as  a  propelling  power  of  their  cars,  was 
construed  to  mean  the  motion-producing  contrivance  of 
the  car.  and  not  to  embrace  the  entire  car.  though  the  word 
is  sometimes  loosely  used  to  designate  a  whole  car.*' 

"Automobile  line,"  "stage  line,"  "  railroad  line"  are 
expressions  which  are  ordinarily  understood  to  mean  a 
regular  line  of  vehicles  for  public  use  operated  between  dis- 
tant points,  or  between  different  cities,  and  do  not  include 
hacks,  stages,  and  automobiles  which  merely  operate  from 
point  to  point  in  one  city  for  the  transportation  of  the 
public.'^ 

5.  Meaning  of  *'  motor  car  "  in  English  itatnte. — See  Sec.  20, 
Subd.   (1),  Eng.  Motor  Car  Act.  1903. 

6.  "Motor" — State  v.  Inhabitants  of  City  of  Trenton,  54  N.  J. 
Law  (25  Vroom)  92,  23  Atl.  Rep.  281. 

The  word  "  motor "  means  a  machine  for  transforming  natural 
energy  in  various  forms  into  mechanical  work,  the  term  in  the 
modern  sense  embracing  windmills,  water-wheels  and  turbines,  steam 
engines,  and  steam  turbines,  the  various  kind  of  gas  engines,  com- 
pressed-air motors,  petroleum  motors,  electric  motors,  etc.  Steam, 
hot  air,  gas.  and  petroleum  motors  together  constitute  the  group  of 
thermic  motors,  because  in  all  of  them  the  source  of  energy  is  heat 
The  Encyclopedia  America,  vol.  X. 

Variona  kinds  of  motors  defined. — See  Int  Motor  Cyc.  p.  327. 

An  antomotor  is  a  self-propelled  machine  (Standard  Diet. 
Addenda),  and  an  automobile  (Webster  Int.  Diet.  Suppl.). 

7.  Automobile  line,  stage  line,  etc. — Com.  V.  Walton,  104  S.  W. 
Rep.  323,  31  Ky.  L.  Rep.  916. 


DEFINITIONS  AND  GENERAL  CONSIDERATIONS.  5 

An  automobilist  may  be  said  to  be  one  who  rides  in,  or 
drives  an  automobile.^ 

Extrinsic  evidence  as  to  the  meaning  of  the  various  terms 
employed  to  designate  the  automobile  would  be  admissible 
as  explanatory  of  the  language  of  any  particular  instrument 
or  writing.  In  pleadings,  however,  especially  in  criminal 
proceedings,  particular  care  should  be  exercised  in  using 
the  proper  and  correct  terms,  especially  where  the  defini- 
tions are  to  be  found  in  a  statute,  which  should  be  followed 
in  the  language  of  the  act. 

§  2.  Legal  definitions. 

The  automobile,  or  self-moving  carriage,  has  not  as  yet 
been  judicially  defined  except  that  it  has  been  declared  to 
be  a  carriage,  though  the  courts  have  said  more  or  less  in 
describing  the  motor  carriage.  The  only  definition  which 
the  author  has  been  able  to  find  in  any  of  the  law  books  is 
that  in  a  law  dictionary,  which  states  that  the  term  means, 
"  All  motor  traction  vehicles  capable  of  being  propelled  on 
ordinary  roads.     Specifically  horseless  carriages."  ^ 

§  3.  Definitions  in  automobile  legislation. 

Fearing  that  disputes  in  the  future  might  arise  concern- 
ing the  meaning  of  the  terms  employed  in  automobile  legis- 
lation to  designate  the  automobile,  in  many  of  the  States 
the  terms  "  motor  vehicle,"  "  automobile,"  "  motor  car," 
and  "  motor  cycle,"   have  been  expressly  defined  by  the 


8.  Automobilist. — Standard  Diet.  Addenda. 

A  person  conversant  with  the  structure  and  mechanism  of  an 
automobile,  and  who  is  experienced  in  driving  it.  Int.  Motor  Cyc. 
p.  45. 

9.  Legal  definitions. — See  English's  Law  Diet.,  p.  78. 

This  definition  was  approTed  in  Diocese  of  Trenton  v.  Toman,  70 
Atl.  Rep.  606. 


6  THE  LAW  OF  AUTOMOBILES. 

legislatures.  Thus  it  is  commonly  provided  that  the  term 
**  motor  vehicle  "  shall  include  all  vehicles  propelled  by  any 
power  other  than  muscular,  except  road  rollers,  fire  engines, 
traction  engines,  and  such  vehicles  as  run  only  upon  rails 
or  tracks.  Cars  of  electric  and  steam  railways  are  specifi- 
cally excepted  from  the  operation  of  the  statutes  and  so 
are  bicycles,  tricycles,  or  such  other  vehicles  propelled  ex- 
clusively, or  in  part,  by  muscular  pedal  power.  The  term 
'*  motor  vehicle  "  as  used  in  legislation  means  motor  vehi- 
cles having  more  than  two  wheels  ordinarily.  Automobile 
fire  engines  and  such  self-propelling  vehicles  as  are  used 
neither  for  the  conveyance  of  persons  for  hire,  pleasure,  or 
business,  nor  for  the  transportation  of  freight  are  excepted 
from  the  provisions  of  some  of  the  enactments. 

In  the  automobile  law  of  Virginia  the  term  "  machine  " 
is  used  to  designate  the  automobile.^" 

Does  **  motor  vehicle"  include  ''motor  cycle''? 
Whether  the  term  "  motor  vehicle,"  when  used  in  auto- 
mobile legislation,  includes  the  "  motor  cycle,"  may  not  be 
clear.  Of  course,  if  the  term  "motor  cycle"  is  expressly 
defined  in  the  law,  as  is  the  case  in  several  of  the  States, 
then  there  should  be  little  question  concerning  the  construc- 
tion of  the  statutory  definitions,  but,  where  motor  cycles  are 
required  to  conform  to  the  automobile  law  by  the  public 
authorities  who  rely  solely  upon  the  term  "  motor  vehicle  " 
as  including  the  "  motor  cycle,"  then  it  would  seem  that  it 

10.  Machine. — An  assemblage  of  inter-related  movable  parts, 
forming  an  appliance  for  transmitting  and  modifying  forces  and  the 
motion  jiroduced  by  them.  A  force  employed  to  move  a  machine  is 
a  "  motor."  The  moving  force  in  a  machine  is  called  the  "  power." 
The  place  of  its  appliance  is  the  "point  of  application;  "  the  line  In 
which  such  point  tends  to  move  is  the  "direction  of  the  power;  " 
the  resistance  to  be  overcome,  the  "weight;  "  and  that  part  of  the 
machine  immediately  applied  to  the  resistance,  the  "  working  point." 
Int.  Motor  Cyc.  p.  295. 


DEFINITIONS  AND  GENERAL  CONSIDERATIONS.  7 

is  stretching  a  point  to  include  "  motor  cycles  "  within  the 
provisions  of  an  act  which  purports  to  regulate  the  four- 
wheeled  vehicle  which  is  commonly  called  an  automobile, 
although,  it  must  be  conceded,  that,  generally  speaking,  a 
"  motor  cycle  "  is  a  "  motor  vehicle."  ^ 

A  traction  engine  is  an  automobile  within  the  meaning 
and  construction  of  the  New  Hampshire  automobile  law 
which  provides  that  the  terms  "  automobile  "  and  "  motor 
cycle  "  shall  include  all  vehicles  propelled  by  other  than 
muscular  power,  except  railroad  and  railway  cars  and 
motor  vehicles  running  only  upon  rails  or  tracks  and  road 
rollers.^ 

Traction  engines  are  usually  excluded  from  the  defini- 
tions of  the  terms  "  automobile "  and  "  motor  vehicle," 
but. in  the  New  Hampshire  law  this  was  apparently  over- 
looked. Automobile  legislation  should  not  include  within 
its  terms  traction  engines,  since  road  machines  or  locomo- 
tives of  this  type  are  not  of  the  same  class  as  automobiles 
and  cannot  properly  fit  into  the  theory  upon  which  motor 
vehicle  statutes  are  enacted  and  warranted.  Extreme 
care  should  be  exercised  in  the  framing  of  statutory  defini- 
tions of  an  automobile  law.  All  things  should  be  included 
which  properly  come  within  the  purpose  and  scope  of  the 


1.  Motor-cycle. — A  two- wheeled  or  sometimes  three-  or  four- 
wheeled  cycle  driven  by  a  motor  and  usually  furnished  with  pedals. 
The  motor  drives  the  wheel  by  belt,  chain  or  propeller  shaft,  or 
even  directly  by  spur-wheels,  and  is  usually  started  by  the  pedals 
or  by  a  crank.  There  is  usually  but  one  speed,  but  sometimes  two 
or  three.  Motor-cycles  carry  but  one  person,  the  driver,  although 
some  makes  produce  arrangements  for  carrying  another  on  an  aux- 
iliary framing,  or  in  a  forward  seat  converting  the  motor-cycle  into 
a  tricycle.  When  furnished  with  four  wheels  it  becomes  a  quad- 
ricycle  or  "  quad."    Int.  Motor  Cyc.  p.  326. 

2.  Traction  engine  is  an  automobile. — ^Emerson  Troy  Granite 
Co.  v.  Pearson,  (N.  H.  1906)  64  Atl.  582. 


8  THE  LAW  OF  AUTOMOBILES. 

law  and  all  objects  excluded  which  are  foreign  to  the  legiti- 
mate sphere  of  the  enactment. 

Meaning  of  the  word  *<team." — In  the  law  of  the  road 
of  Mai>ic  it  is  provided  that  the  word  "  team  "  includes  all 
kinds  of  carriages  on  the  public  ways  for  persons  and  for 
property.^ 

§  4.  Automobile  a  vehicle. 

There  can  be  little  doubt  but  that  the  automobile  con- 
stitutes in  law  a  vehicle,  ordinarily  speaking,  and  it  comes 
within  a  definition  stating  that  "  a  vehicle  is  a  carriage 
moving  on  land,  either  on  wheels  or  runners ;  a  convey- 
ance ;  that  which  is  used  as  an  instrument  of  conveyance  or 
communication."  * 

In  Connecticut  it  was  provided  by  statute  that  the  word 
"  vehicle  "  whenever  it  occurred  in  the  enactments  regulat- 
ing the  use  of  vehicles  on  the  highways  should  be  con- 
strued to  include  bicycles,  tricycles,  and  motor  carriages. ° 

In   Ohio,  the  word  "  vehicle  "  as  used  in  the   Revised 

3.  Team. — See  the  statutes  of  Maine  pertaining  to  the  law  of  the 
road. 

4.  Automobile  is  a  vehicle. — Davis  v.  Petrinovich,  112  Ala. 
564,  21  So.  Rep.  344,  36  L.  R.  A.  615  (quoting  Cent.  Diet.). 

The  automobile  is  a  vehicle  in  common  use  for  transporting  both 
persons  and  merchandise  upon  the  public  ways,  and  its  use  is  regu- 
lated by  statute.  Baker  v.  City  of  Fall  River,  (Mass.  1904)  72 
N.  E.  Rep.  336. 

The  ordinances  for  the  city  of  New  York  provide  as  follows: 
*'  Every  wagon,  carriage,  omnibus,  sleigh,  pushcart,  bicycle,  tricycle, 
and  other  conveyance  (except  baby  carriages),  in  whatever  manner 
or  by  whatever  force  or  power  the  same  may  be  driven,  ridden 
or  propelled,  which  is  or  may  be  used  for  or  adapted  to  pleasure  rid- 
ing or  the  transportation  of  passengers,  baggage,  or  merchandise 
upon  the  street;  and  every  draught  and  riding  animal,  whether 
driven,  ridden  or  led,  excepting  that  an  animal  or  animals  attached 
to  any  vehicle  shall,  with  such  vehicle,  constitute  one  vehicle." 

5.  Connecticnt  atatute. — Gen.  Stat.  Conn.  1902,  sec.  2038. 


DEFINITIONS  AND  GENERAL  CONSIDERATIONS.  9 

Statutes,  §  1536-100,  includes  all  classes  and  kinds  of  con- 
veyances, whether  used  for  hire  or  not.*^ 

The  statutes  of  the  United  States  provide  that  the  word 
"  vehicle  "  includes  every  description  of  carriage  or  other 
artificial  contrivance  used,  or  capable  of  being  used,  as  a 
means  of  transportation  on  landJ 

In  this  connection  it  is  of  interest  to  note  that  according 
to  a  long  line  of  decisions  the  term  "  vehicle  "  includes  a 
bicycle,  and  it  is  very  appropriately  stated  in  a  Minnesota 
case  that  the  term  "  vehicle  "  includes  a  bicycle,  the  latter 
being  used  very  excessively  for  convenience,  recreation, 
pleasure,  and  business ;  and  the  riding  of  bicycles  upon  the 
public  highway  in  the  ordinary  manner,  as  it  is  now  done, 
is  neither  unlawful  nor  prohibited,  as  they  cannot  be 
banished  because  they  were  not  ancient  vehicles  and  used 
in  the  Garden  of  Eden  by  Adam  and  Eve.^ 

6.  Ohio  statute. — Sterling  v.  Bowling  Green,  5  C.  C.  (N.  S.) 
217,  16  Cir.  Dec.  581. 

7.  United  States  statutes. — U.  S.  Comp.  Stat.  1901,  p.  4,  sec.  4. 
Automobile     is     a     vehicle. — An     automobile     is     a     "  vehicle " 

within  the  meaning  of  a  statute  using  that  term. 

Gassenheimer  v.  Dist.  of  Columbia,  26  App.  Cas.  (D.  C.)  557. 
But  see  Washington  Electric  Vehicle  Transfer  Co.  v.  Dist.  of  Co- 
lumbia 19  App.  Cas.    (D.  C.) 

8.  "  Vehicle  "  includes  bicycle. — Thompson  v.  Dodge,  58  Minn. 
555,  60  N.  W.  Rep.  545,  28  L.  R.  A.  608,  49  Am.  St.  Rep.  533. 

That  the  term  "  vehicle "  includes  the  bicycle,  see  Davis  v. 
Petrinovich,  112  Ala.  564,  21  So.  Rep.  344,  36  L,  R.  A.  615;  Mercer 
V.  Corbin,  117  Ind.  450,  20  N.  E.  Rep.  132,  134,  3  L.  R.  A.  221,  10 
Am.  St.  Rep.  76;  Holland  v.  Bartch,  120  Ind.  46,  22  N.  E.  Rep.  83, 
85,  16  Am.  St.  Rep.  307;  Roberts  v.  Parker,  117  Iowa  389,  90  N.  W. 
Rep.  744,  57  L.  R.  A.  764,  94  Am.  St.  Rep.  316;  Myers  v.  Hinds, 
110  Mich.  300,  68  N.  W.  Rep.  156,  157,  33  L.  R.  A.  356,  64  Am.  St. 
Rep.  345;  Thompson  v.  Dodge,  58  Minn.  555,  60  N.  W.  Rep.  545,  546,  28 
L.  R.  A.  608,  49  Am.  St.  Rep.  533;  Gagnier  v.  City  of  Fargo,  11  N.  D. 
73,  88  N.  W.  Rep.  1030,  1031,  95  Am.  St.  Rep.  705;  Lacy  v.  Winn,  4 
Pa.  Dist.  Rep.  409.  412;  State  v.  Collins,  16  R.  I.  371,  17  Atl.  Rep. 
131;  Laredo  Electric  &  Ry.  Co.  v.  Hamilton,  23  Tex.  Civ.  App.  480,  56 


IQ  THE  LAW  OF  AUTOMOBILES. 

§  5.  Automobile  a  carriage. 

There  seems  to  be  some  question  as  to  whether  the  term 
"  carriage  "  may  always  and  under  all  circumstances,  in- 
clude the  modern  vehicle  of  transportation.  It  has  been 
emphatically  laid  down  that  an  automobile  is  a  carriage. 
Plainly,  an  automobile  is  a  vehicle  which  can  carry  passen- 
gers or  inanimate  matter,  and  therefore,  ordinarily  speak- 
ing, it  is  a  carriage.^  But  in  distinguishing  the  automobile 
from  the  bicycle  it  should  be  mentioned  that  it  has  been 
held  that  a  bicycle  was  not  a  carriage  within  the  meaning 
of  a  Massachusetts  statute  requiring  highways  to  be  kept 
reasonably  safe  for  carriages.^*' 

Conflict  in  authorities. — It  would  naturally  be  supposed 
that  there  could  be  no  question  as  to  whether  the  automobile 
is  or  is  not  a  "  carriage."  The  motor  vehicle  is  nothing 
more  or  less  than  a  carriage  with  a  motor  attached  and 
moved  by  mechanical  power  instead  of  by  muscular  power. 

S.  W.  Rep.  998,  1000;   Jones  v.  City  of  Williamsburg,  97  Va.  722, 
34  S.  E.  Rep.  883,  47  L.  R.  A.  294. 

9.  Automobile  is  a  carriage.— Baker  v.  City  of  Fall  River, 
(Mass.  1904)  72  N.  E.  Rep.  336;  Com.  v.  Hawkins,  14  Pa.  Dist. 
Rep.  502;  Scranton  v.  Laurel  Run  Turnpike  Co.,  14  Luz.  Leg.  Rep. 
(Pa.)  97,  Diocese  of  Trenton  v.  Toman,  70  Atl.  Rep.  606,  Contra, 
Doherty  v.  Town  of  Ayer,  83  N.  E.  Rep.  677. 

The  New  York  Highway  Law  provides  that  the  term  "  carriage  " 
shall  be  construed  to  include  automobiles.  Gen.  Laws  New  York, 
vol.  2,  sec.  162,  p.  1639. 

Motor  bicycle  is  a  "  carriage."— The  Divisional  Court  of  England 
declared  a  motor  bicycle  to  be  a  carriage  (Lord  Alverstone,  C.  J., 
Mills  and  Kennedy,  JJ.)  and  that  It  comes  within  the  English 
Inland  Revenue  Act,  1888.  sec.  4,  and  an  owner  is  liable  to  pay  duty 
upon  it  as  a  carriage.  O'Donoghue  v.  Moore,  (S.  J.  477;  L.  T.  35; 
T.  495)  23  Law  Notes  (Eng.)  171. 

A    bicycle    may    be   considered    a    carriage. — Taylor    v.    Goodwin. 

4  Q  B.  228. 

10.  Bicycle  not  a  carriage. — Richardson  v.  Danvers,  176  Mass. 
413.  57  N.  E.  Rep.  688.  50  L.  R.  A.  127,  79  Am.  St.  Rep.  330.  Com- 
pare Taylor  v.  Goodwin,  4  Q.  B.  228. 


DEFINITIONS  AND  GENERAL  CONSIDERATIONS.  1  [ 

We  would,  however,  hesitate  to  call  an  ordinary  old-fash- 
ioned horse-drawn  vehicle  a  "  car,"  although  the  automo- 
bile is  frequently  so  designated. 

The  highest  judicial  authority  tells  us  that  an  automobile 
may  or  may  not  be  considered  a  carriage,  according  to  the 
facts  and  circumstances  surrounding  the  use  of  the  word. 
Drivers  of  "  carriages "  are  not  allowed  to  do  certain 
things.  Are  chauffeurs  or  automobile  drivers  included  in 
the  prohibition?  Towns  are  compelled  to  keep  their  roads 
and  highways  in  reasonably  safe  repair  and  condition  for 
the  safety  of  "  carriages."  This  legal  requirement  was 
enacted  a  hundred  years  ago,  long  before  automobiles  were 
heard  of.  Must  the  avenues  of  travel  be  kept  in  a  safe  con- 
dition for  automobile  travel?  The  answer  to  the  last  ques- 
tion depends  upon  whether  the  term  "  carriages  "  shall  be 
held  to  include  automobiles.  The  Supreme  Judicial  Court  of 
Massachusetts  has  held  that  automobiles  are  not  carriages 
within  the  meaning  of  such  a  requirement  as  the  last  men- 
tioned.^ 


1.  Antomobile  not  a  carriage. — Doherty  v.  Town  of  Ayer,  83  N. 
E.  Rep.  677. 

Author's  note. — So  far  as  the  intention  of  the  statute  referred 
to  is  concerned  the  Massachusetts  court  is  undoubtedly  correct,  but 
upon  principle  it  would  seem  that  in  justice  the  automobile  should 
be  included  within  the  statute  of  Massachusetts.  The  court  in  this 
case  held  further  that  though  persons  may  lawfully  travel  over 
highways  in  automobiles,  a  town  is  not  liable  for  a  failure  to  make 
special  provisions  required  only  for  their  safety  and  convenience,  if 
the  roads  are  kept  reasonably  safe  and  convenient  for  travel  generally. 
It  may  be  asked,  What  is  "  travel  generally  "? 

The  general  travel  on  our  public  highways  to-day  is  largely  com- 
posed of  automobile  travel,  and  it  is  somewhat  questionable  whether 
or  not  "  travel  generally  "  is  not  made  up,  to  a  larger  extent,  of  the 
use  of  automobiles.  If  it  is  required  of  a  municipality  to  keep  its 
roads  in  a  reasonably  safe  condition  for  travel  generally,  it  certainly 
would  seem  that  such  a  law  would  include  the  automobile.  Unques- 
tionably, the  Massachusetts  Court  decided  the  question  before  it  cor- 


12  THE  LAW  OF  AUTOMOBILES. 

The  decision  of  the  Massachusetts  court  is  not  in  har- 
mony with  the  prevaihng  judicial  opinion  of  authority  on 
the  subject.  There  have  been  many  judicial  expressions 
to  the  effect  that  an  automobile  is  a  carriage,  and  it  is  the 
common  sense  view  to  include  in  the  term  the  new  means 
of  highway  travel. 

That  the  automobile  is  a  "  carriage  "  has  been  held  by 
the  A'czi'  Jersey  Court  of  Chancery,  in  the  case  of  Diocese 
of  Trenton  v.  Toman,  70  Atl.  Rep.,  606.  The  court  in  this 
case  had  before  it  a  covenant  in  a  deed  reserving  a  strip  of 
land  for  a  carriageway  forever.  Vice-Chancellor  Walker, 
in  the  court's  opinion,  says : 

No  particular  kind  of  carriage  or  wagon  is  mentioned. 
Although  automobiles  had  not  been  invented  at  the  time 
the  easement  was  created,  yet  the  language  of  the  grant  is 
unrestricted,  and  must  be  held  to  include  any  vehicle  on 
wheels  then  or  thereafter  to  be  used. 

Here  we  find  the  courts  of  New  Jersey  and  Massachu- 
setts seemingly  diametrically  opposed,  the  latter  courts 
holding  that  an  automobile  is  not  a  carriage  and  the  former 
that  the  term  includes  the  automobile.  The  circumstances 
in  each  case  were  very  similar.  The  term  was  used  long 
before  the  invention  of  the  motor  vehicle,  only  in  the  Mas- 
sachusetts case  a  State  law  was  under  consideration,  while 
in  New  Jersey  a  covenant  between  two  persons  was  being 
construed.  The  opinion  of  the  New  Jersey  court  further 
states  as  follows : 

A  case  entirely  in  point,  on  principle,  is  that  of  Tavlor 
V.   Goodwin,  4  Q.   B.   228,   in  which   it  was  held   that   a 


rectly  from  a  legal  standpoint.  However,  to  hold  that  an  automobile 
is  not  a  rarriage  within  the  meaning  of  the  statute  referred  to  is  a 
somewhat  narrow  construrtion  of  the  act,  and  the  decision  is  not  in 
all  respects  in  harmony  with  a  liberal  interpretation,  with  a  view  to 
complete  justice. 


DEFINITIONS  AND  GENERAL  CONSIDERATIONS.  13 

person  riding  a  bicycle  on  a  highway  at  such  a  pace  as  to 
be  dangerous  to  the  passers-by  might  be  convicted  of 
furiously  driving  a  "  carriage  "  under  the  Eng.  St.  5  and 
6  Wm.  IV,  C.  50,  Sec.  ^2.  Lush,  J.,  concurring  with 
Mellor,  J.,  made  the  following  observations:  "The  mis- 
chief intended  to  be  guarded  against  was  the  propulsion  of 
any  vehicle  so  as  to  endanger  the  lives  or  limbs  of  the 
passers-by.  It  is  quite  immaterial  what  the  motive  power 
may  be.  Although  bicycles  were  unknown  when  the  act 
was  passed,  it  is  clear  that  the  intention  was  to  use  words 
large  enough  to  comprehend  any  kind  of  vehicles  which 
might  be  propelled  at  such  a  speed  as  to  be  dangerous." 
Mr.  Huddy,  in  his  "Law  of  Automobiles"  (page  6), 
speaking  of  the  machines  which  he  calls  automobiles,  or 
self-moving  carriages,  says  that  the  only  definition  he  has 
been  able  to  find  of  them  is  that  in  English's  Law  Die,  p. 
78,  which  states  that  the  term  means  "  all  motor  traction 
vehicles  capable  of  being  propelled  on  ordinary  roads. 
Specifically,  horseless  carriages." 

There  probably  is  not  so  much  real  conflict  of  authority 
concerning  whether  an  automobile  may  be  considered  a 
carriage  within  the  meaning  of  a  statute  or  writing,  as 
would  seem,  for,  after  all,  the  particular  construction  of 
the  term  will  depend  upon  the  intention  with  which  the 
word  was  used  and  the  demands  of  justice,  provided  the 
interpretation  is  reasonable.  Thus  an  English  court  decided 
that  an  automobile  is  not  a  carriage.  A  man  in  making  his 
will  left  a  choice  of  "  carriages  "  to  his  wife,  daughter  and 
a  son,  in  succession  in  his  will.  Later  he  bought  two  motor 
cars,  and  the  question  which  arose  on  his  death  was  as  to 
whether  in  choosing  a  "  carriage  "  the  devisees  could  take 
a  motor  car.  It  was  held  that  all  the  ingenuity  of  counsel 
had  not  been  able  to  convince  the  court  that  the  motor  cars 
were  included  in  the  various  bequests  of  "  carriages  "  to 


14  THE  LAW  OF  AUTOMOBILES. 

be  chosen  by  tlie  wife,  and  by  the  daughter,  and  "  carriages 
not  otherwise  disposed  of  "  to  the  son.  Each  of  the  devi- 
sees wanted  a  motor  car,  and  each  had  a  lawyer  to  show- 
that  a  motor  car  was  a  "  carriage,"  but  the  court  sent  the 
automobiles  into  the  residue  of  the  estate.^ 

**  A  pleasure  carriage  is  one  for  the  more  easy,  con- 
venient, and  comfortable  transportation  of  persons,"  ^  and 
the  term  ''  pleasure  carriage,"  as  used  in  an  act  establishing 
a  turnpike,  includes  a  one-horse  wagon  with  a  spring  seat 


2.  Automobile  not  a  carriage  or  vehicle. — In  the  state  of  New 
York  there  is  a  law  which  maizes  it  necessary  for  an  owner  of  a 
vehicle  propelled  by  steam  to  send  ahead  of  the  vehicle  a  person  of 
mature  age  at  least  one-eighth  of  a  mile  in  advance,  who  shall 
notify  and  warn  persons  of  the  approach  of  the  vehicle.  This  law 
would  seem  to  apply  to  an  automobile  propelled  by  steam,  and,  it 
might  be  suggested  that  if  the  prosecuting  authorities  wished  to  do 
so  the  owners  and  drivers  of  automobiles  propelled  by  steam  could 
be  prosecuted  under  the  provisions  of  this  statute.  Such  a  view, 
however,  is  erroneous,  for  it  has  been  expressly  held  in  Nason  v. 
"West,  31  Misc.  (N.  Y.  583),  that  the  provisions  of  the  highway  law. 
Section  155,  and  of  the  Penal  Code,  Section  640,  subdivision  11,  do 
not  apply  to  *  *  *  automobiles,  but  are  directed  against  the  heavier 
traction  engines;  and  the  requirement  that  a  forerunner  must  pre- 
cede the  steam  carriage  would  have  no  value,  and  has  no  applica- 
tion." The  New  York  statute  is  as  follows:  "  The  owner  of  a 
carriage,  vehicle  or  engine,  propelled  by  steam,  his  servant  or  agent, 
shall  not  allow,  permit  or  use  the  same  to  pass  over,  through  or 
upon  any  public  highway  or  street,  except  upon  railroad  tracks, 
unless  such  owners,  or  their  agents  or  servants,  shall  send  before  the 
same  a  person  of  mature  age  at  least  one-eighth  of  a  mile  in  advance, 
who  shall  notify  and  warn  persons  traveling  or  using  such  highway 
or  street,  with  horses  or  other  domestic  animals,  of  the  approach  of 
such  carriage,  vehicle  or  engine;  and  at  night  such  person  shall  carry 
a  red  light,  except  in  incorporated  villages  and  cities.  This  sertion 
shall  not  apply  to  any  carriage  or  motor  vehicle  propelled  by  steam 
developing  less  than  25  horse  power,  other  than  a  steam  traction 
engine." 

3.  Pleasure  carriage. — Brendon  v.  Warley,  28  N.  Y.  Supp. 
557,  8  Misc.  Rep.  253. 


DEFINITIONS  AND  GENERAL  CONSIDERATIONS.  15 

and  painted  sides  which  is  not  used  for  farming  purposes 
or  for  carrying  goods.^ 

The  automobile  being  a  "  pleasure  carriage  "  may  use  a 
toll  road  or  turnpike  upon  paying  reasonable  fees  for  the 
privilege.'^ 

Under  these  definitions  of  the  term  "  pleasure  carriage  " 
there  seems  to  be  no  doubt  as  to  whether  a  motor  vehicle, 
which  is  used  for  the  more  easy,  convenient,  and  comfort- 
able transportation  of  persons,  is  a  pleasure  carriage.  The 
term  carriage,  under  a  statute  or  ordinance,  may  refer  only 
to  vehicles  as  automobiles  used  for  the  conveyance  of 
persons,  and  not  those  used  in  the  transportation  of  prop- 
erty. Thus,  where  an  ordinance  provided  that  no  one 
should  keep  or  hire  out  carriages  without  license,  it  was 
held  that  carriages  for  persons  only  were  meant.*^ 

§  6.  Other  definitions. 

Definitions  of  other  terms  and  words  will  be  found  in 
the  subsequent  chapters  of  this  book  concerning  the  par- 
ticular subjects  wherein  the  terms  and  words  occur.  Many 
of  the  expressions  have  not  been  passed  upon  by  the  courts. 
Some  have.  However,  the  importance  of  the  meaning  of  a 
definition  cannot  be  overestimated,  since  future  controver- 
sies in  automobile  legislation  hinging  on  the  definition  of 
a  word  or  the  meaning  of  a  particular  phrase,  will  be  many. 
We  have  already  seen  that  an  automobile  may  be  con- 
sidered a  "  carriage  "  under  certain  circumstances  and  it 
is  not  a  "  carriage  "  under  certain  other  circumstances. 

The    automobile    has    brought    to    us    new    words    and 


4.  "  Pleasure    carriage "    includes    what? — Moss   v.    Moore,    18 
Johns.  (N.  Y.)  128. 

5.  Use    of    toll    road    or    turnpike. — Scranton    v.    Laurel    Run 
Turnpike  Co.,  14  Luz.  Leg.  Reg.  Rep.  97. 

6.  Carriages  for  persons. — Snyder  v.  City  of  North  Lawrence,  8 
Kan.  82. 


16  THE  LAW  OF  AUTOMOBILES. 

phrases.  These  are  now  in  common  and  everyday  use  and 
sooner  or  later,  the  courts  will  be  called  upon  to  judicially 
define  their  meaning.  Take,  for  example,  the  words  "  joy 
riding."  This  is  a  new  expression,  but  the  meaning  con- 
veyed is  well  understood,  and  to  call  a  person  a  "  joy 
rider  "  would  constitute  slander,  provided  the  statement  is 
false  and  the  other  elements  of  the  tort  exist."^ 

The  words  *'ride"  and  *<  drive"  are  not  confined 
to  animals.  They  are  not  limited  in  any  manner  whatso- 
ever. Anything  capable  of  being  ridden  or  driven  comes 
within  the  purview  of  those  terms.  They  are  apt  words 
in  the  case  of  bicycles,  motorcycles  or  automobiles,  when 
ridden  or  driven.^ 

Definitions  of  automobile  parts  and  accessories  may 
be  of  great  importance  in  the  construction  and  inter- 
pretation of  contracts.  What  is  and  what  is  not  included 
within  the  meaning  of  certain  terms  used  by  parties  may 
be  the  subject  of  dispute.  For  example,  an  automobile 
body  is  ordered  from  a  manufacturer  or  dealer,  what  is 
the  purchaser  entitled  to  receive?  Take  also  the  purchase 
of  an  automobile.  What  goes  with  it  for  the  price  named? 
Are  lamps,  searchlights,  tools,  speedometer,  clock,  wind 
shield,  etc.,  to  go  with  it,  or  are  all  or  some  of  these  ar- 
ticles to  be  treated  as  accessories  and  entailing  extra  ex- 
pense. So  far  as  lamps  are  concerned,  it  may  be  said  that 
the  automobile  may  be  expected  by  the  purchaser  to  be 
legally  equipped  for  operation  on  the  public  highways,  but 
this  does  not  necessarily  include  e.xtra  searchlights.  So 
also  a  horn  or  proper  signal  or  warning  device  goes  with 
the  sale  of  an  automobile  without  express  mention.     These 

7.  Traveling  is  defined  as  passing  from  place  to  place — the  act 
of  performing  a  journey;  and  a  traveler  is  a  person  who  travels. 
Ex  parte  Archy,  9  Cal.  164. 

8.  "Ride  "and  "  drive."— State  v.  Smith.  69  AU.  Rep.  1061; 
State  V.  Thurston,  28  R.  L  265,  66  Alt.  Rep.  580. 


DEFINITIONS  AND  GENERAL  CONSIDERATIONS.  17 

may  be  said  to  come  properly  within  the  meaning  of  the 
term  automobile  or  other  word  used  in  the  contract  of  pur- 
chase. Chains,  however,  to  prevent  skidding,  a  speed- 
ometer and  a  clock,  would  not  ordinarily  be  included. 
Then  again,  it  might  be  asked  if  a  wheel  includes  the  tire, 
or  shoe  and  inner  tube.  In  the  case  of  the  purchase  of  an 
ordinary  wagon  wheel,  the  metallic  tire  would  necessarily 
be  included,  but  in  purchasing  an  automobile  wheel,  the 
shoe  and  inner  tube  might  not  be  intended  unless  the  inten- 
tion of  the  parties  to  the  contrary  appears.  Custom  and 
usage  in  the  trade  would  control  of  course  in  the  absence 
of  express  contractual  provisions.  Robes,  goggles,  clocks, 
speedometers,  chains  and  similar  accessories  are  not  parts 
of  an  automobile,  though  quite  necessary  in  the  use  of 
motor  vehicles.^ 

9.  Engine. — A  piece  of  mechanism  used  to  convert  heat,  or  some 
other  form  of  energy  into  mechanical  work;  in  other  words,  a  ma- 
chine for  the  development  of  power  from  some  source  of  energy,  such 
as  coal,  gas,  oil,  etc.  A  gasolene  engine  is  an  internal  combustion 
engine  in  which  the  fuel  used  is  an  inflammable  vapor  formed  by  a 
mixture  of  gasolene  and  air.    Int.  Motor  Cyc.  pp.  177  and  178. 

Carburetter. — An  apparatus  in  which  is  effected  the  mixing 
of  the  fuel  necessary  for  the  operation  of  internal  combustion  motors. 
Int.  Motor  Cyc.  p.  98. 

Chassis. — A  term  for  the  frame  together  with  the  power-plant 
and  running  gear,  independently  of  the  body  of  a  motor-vehicle. 
In  French  it  has  come  to  mean  all  this,  but  originally  it  designated 
the  frame  only.     Int.  Motor  Cyc.  p.  111. 

The  frame  is  that  part  of  a  motor-vehicle  which  supports  the 
carriage  body,  motor,  and  transmission,  and  to  which,  beneath,  are 
attached  the  wheel-axles.     Int.  Motor  Cyc.  p.  197. 

Transmission-gear. — The  gearing  through  which  the  power  from 
the  motor  in  an  automobile  is  transmitted  to  the  rear  axle.  Int. 
Motor  Cyc.  p.  477. 

Automobile  engine  not  a  brake. — Wilmott  v.  Southwell,  L.  T. 
Rep.  vol.  XXV,  No.  2,  p.  22,  Oct.  27,  1908. 

Replevin  of  automobile. — Pabst  Brewing  Co.  v.  Rapid  SafetJ" 
Filter  Co.,  107  N.  Y.  S.  163,  56  Misc.  Rep.  445. 

Fire  originating  "  within  "  automobile — Insurance. — Preston 
V.  Aetna  Ins.  Co.,  193  N.  Y.  142. 


CHAPTER  n. 
HISTORICAL. 

Sec.  1.  Automobile  vehicle  of  modern  times. 

2.  Development  of  motor  carriage. 

3.  Growth  of  law. 

4.  Law  keeps  up  with  improvement  and  progress. 

5.  Highways  open  to  new  uses, 

6.  Tendencies  in  legislation. 

7.  Tendencies  in  judicial  decisions. 

§  1.  Automobile  vehicle  of  modem  times. 

The  automobile  is  decidedly  a  vehicle  of  modern  times. 
In  1899  there  were  but  few  automobiles  in  existence  in  the 
United  States,  while  at  the  present  time  there  are  thou- 
sands of  motor  cars  and  the  number  is  increasing  from 
year  to  year.  The  modern  automobile  is  a  development  of 
comparatively  recent  date,  but  its  inception  dates  back  to 
the  early  days  of  the  steam  engine.  In  1680  Sir  Isaac 
Newton  proposed  a  steam  carriage  to  be  propelled  bv  the 
reactive  effect  of  a  jet  of  steam  issuing  from  a  nozzle  at 
the  rear  of  the  vehicle.  In  1790  Nathan  Read  patented 
and  constructed  a  model  steam  carriage  in  which  two 
steam  cyclinders  operated  racks  running  in  pinions  on  the 
driving  shaft.  In  1769- 1770  Nicholas  Joseph  Cugnot,  a 
Frenchman,  built  two  steam  carriages.  The  larger  of 
these  is  still  preserved  in  Paris,  and  was  designed  for  the 
transportation  of  artillery.  Murdock,  an  assistant  of 
James  Watt,  constructed  a  model  carriage  operated  by  a 
grasshopper   engine,   and    in    1786   Oliver   Evans,    of   the 

United  States,  suggested  the  use  of  steam  road  wagons  to 

[18] 


HISTORICAL.  19 

the  Lancaster  Turnpike  Company  of  Maryland.  In  1802 
Richard  Trevitluck  built  a  steam  carriage,  which  was  ex- 
hibited in  London,  having  driven  itself  ninety  miles  from 
Camborne,  where  it  was  built,  to  London.  This  carriage 
brings  us  to  the  notable  period  of  steam-coach  construction 
in  England,  which  lasted  until  1836.  From  this  time  we 
have  experienced  periods  of  development  of  the  automo- 
bile until  it  is  in  its  present  shape. ^ 

§  2.  Development  of  motor  carriage. 

The  successful  displacement  of  animal  power  by  me- 
chanical devices  is  an  old  problem.  The  early  records  of 
achievement  in  this  direction  were  so  fragmentary  and 
imperfect  that  the  earliest  conception  of  the  idea  is  mys- 
teriously hidden  in  the  past.  The  application  of  the  force 
of  steam  for  propulsion  on  sea  and  land  was  anticipated 
by  Roger  Bacon  when  he  wrote :  "  We  will  be  able  to 
construct  machines  which  will  propel  large  ships  with 
greater  speed  than  a  whole  garrison  of  rowers,  and  which 
will  need  only  one  pilot  to  direct  them;  we  will  be  able  to 
propel  carriages  with  incredible  speed  without  the  assist- 
ance of  any  animal ;  and  we  will  be  able  to  make  machines 
which  by  means  of  wings  will  enable  us  to  fly  into  the  air 
like  birds."  2 

§3.  Growth  of  law. 

To  study  automobile  legislation  and  the  decisions  of  the 
courts  concerning  motor  vehicles,  one  does  not  have  to 
wade  through  centuries  of  musty  reports,  though  such  a 
process  often  is  necessary  in  looking  up  a  rule  or  principle 
of  law  applicable  to  the  automobile  or  its  operation  on  the 
public  streets  and  highways.     The  legislative  enactments 

1.  History  of  power  vehicle. — The  New  International  Encyclo- 
pedia, vol.  II.,  pp.  271,  272. 

2.  Roger  Bacon's  writings. — The  Encyclopedia  America,  vol.  II. 

1 : 


^  THE  LAW  OF  AUTOMOBILES. 

and  judicial  decisions  in  the  United  States  do  not  extend 
far  back.  In  Englaud,  however,  Parliament  has  for  some 
time  regulated  the  operation  of  steam  carriages  and  the 
act  passed  in  1896  was  the  parent  of  the  amendatory  act 
passed  in  1903,  known  as  the  "  Motor  Car  Act  of  1903." 
In  the  U}iited  States  in  1899  there  were  practically  no  cases 
decided  concerning  motor  cars  in  the  law  reports,  but  from 
that  time  on  until  the  present  the  increase  of  legislation 
and  judicial  decisions  is  very  noticeable  and  marked ;  so 
that  the  conclusion  is  warranted  that  there  has  commenced 
a  branch  of  the  law  which  will  devote  much  attention  to 
the  twentieth  century  conveyance.^ 


3.  See  Law  Notes,  voL  IX.,  No.  8,  147. 

Critical  legislative  period. — The  history  of  legislation  con- 
trolling automobile  driving  shows  us  that  the  regulation  of  automo- 
biling  started  with  few  restrictions,  and  has  gradually  increased, 
until  there  are  now  many  and  numerous  regulations  in  various 
States.  We  have  arrived  at  the  point  where  there  must  be  a  turn 
in  the  tide,  either  in  one  way  or  the  other,  calling  forth  either  an 
increase  or  a  decrease  in  the  control  over  the  subject.  Particularly 
unfortunate  is  it  that  at  this  critical  period  the  industry  and  automo- 
bilists  should  be  face  to  face  with  many  examples  of  reckless  driving, 
disregard  for  the  public  safety,  and  a  disposition  of  even  automobilists 
themselves  to  incite  the  speed  mania. 

The  daily  newspapers  are  editorially  advocating  further  restric- 
tions. The  railroads  are  devising  means  and  ways  of  protecting 
automobilists  against  their  own   recklessness. 

The  automobile  associations  have  manifested  a  desire  and  over- 
eagemess  to  stop  reckless  driving  and  to  comply  with  the  spirit  of 
the  automobile  laws.  Meetings  have  been  held  between  representa- 
tives of  these  organizations  and  county  oflBcials  to  devise  ways  and 
means  for  preventing  disastrous  and  reckless  driving.  Committees 
of  public  safety  have  been  appointed  by  certain  clubs  and  state- 
ments have  been  issued  to  the  public  asserting  the  position  which 
the  automobilists  take  against  speeding.  All  this  has  had  a  ten- 
dency to  some  extent  to  restore  confidence  in  the  public;  but  actions 
speak  louder  than  words.  Nothing  material  has  been  acforaplished, 
and  to-day  a  more  critical  situation  has  never  faced  automobiledom 
and  the  public. 


HISTORICAL.  21 

§  4.  Law  keeps  up  with  improvement  and  progress. 

"  In  all  human  activities  the  law  keeps  up  with  improve- 
ment and  progress  brought  about  by  discovery  and  inven- 
tion, and,  in  respect  to  highways,  if  the  introduction  of  a 
new  contrivance  for  transportation  purposes,  conducted 
with  due  care,  is  met  with  inconvenience  and  even  inci- 
dental injury  to  those  using  ordinary  modes,  there  can  be 
no  recovery,  provided  the  contrivance  is  compatible  with 
the  general  use  and  safety  of  the  road."  * 

§  5.  Highways  open  to  new  nses. 

"  When  the  highway  is  not  restricted  in  its  dedication 
to  some  particular  mode  or  use,  it  is  open  to  all  suitable 

It  is  utterly  impossible  to  legislate  evil  out  of  existence.  Acci- 
dents cannot  be  prevented  by  laws,  neither  can  evil  conduct.  Con- 
duct may,  to  a  more  or  less  extent,  be  regulated  by  statutory  con- 
trol, if  the  penalties  are  severe  enough  to  provoke  respect  in  the 
minds  of  those  who  would  disobey  the  law.  Various  men  through- 
out the  country  have  suggested  ways  and  means  for  doing  away  with 
evils  connected  with  automobiling.  Very  comprehensive  laws  have 
been  enacted,  notably  the  one  in  the  State  of  New  Jersey,  which, 
it  must  be  confessed,  is  as  good  a  law  as  any  for  all  concerned, 
with  the  exception,  perhaps,  of  its  revenue  features.  The  courts 
have  in  one  or  two  rare  instances  given  a  jail  sentence  to  drivers 
who  have  been  guilty  of  speeding  under  aggravating  circumstances, 
but  it  must  be  noted  that  there  has  been  no  decrease  in  the  evil. 

The  time  has  come  for  automobilists  themselves  to  take  active 
steps  in  order  to  protect  automobiling.  Instead  of  asking  special 
favors,  for  more  lenient  regulations  and  for  the  privilege  of  holding 
illegal  speed  contests  on  the  public  highways,  they  should  be  spend- 
ing their  time  devising  a  method  to  regain  the  respect  which  they 
should  have  in  the  minds  of  the  public,  and  to  protect  themselves 
against  the  evils  which  are  now  known  to  exist.  Automobilists 
should  be  just  as  eager  to  have  a  violator  of  the  law  prosecuted  and 
punished  as  the  public  oflQcials  are,  and  it  would  seem  that  the 
proper  method  to  get  at  this  is  for  automobilists  themselves  to  main- 
tain a  prosecuting  department  which  will  be  energetic  and  active. 

4.  LaTV  keeps  up  -with  improvement  and  progress.^-Indiana 
Springs  Co.  v.  Brown,  165  Ind.  465,  74  N.  E.  Rep.  615,  1  L.  R.  A. 
(N.  S.)   238. 


I 


/ 


22  THE  LAW  OF  AUTOMOBILES. 

methods ;  and  it  cannot  be  assumed  that  these  will  be  the 
same  from  age  to  age,  or  that  new  means  of  making  the 
way  useful  must  be  excluded  merely  because  their  intro- 
duction may  tend  to  the  inconvenience  or  even  to  the  injury 
of  those  who  continue  to  use  the  road  after  the  same 
manner  as  formerly.  A  highway  established  for  the  gen- 
eral benefit  of  passage  and  traffic  must  admit  of  new  meth- 
ods of  use  whenever  it  is  found  that  the  general  benefit  re- 
quires them."  ^ 

§  6.  Tendencies  in  legislation. 

The  automobile  legislation  in  the  United  States  was 
originally  framed  upon  the  theory  of  regulation,  in  so  far 
as  registration  requirements  were  concerned,  but  it  is  to  be 
regretted  that  in  some  of  the  States,  there  has  been  a  dis- 
position to  exact  revenue  from  automobilists  under  the 
licensing  power  of  the  government.  The  revenue  features 
of  the  automobile  laws  are  clearly  unauthorized,  since  the 
police  powers  of  the  States  do  not  permit  taxation  beyond 
a  reasonable  limit.  Moreover  the  right  of  transit  from 
State  to  State  cannot  be  taxed. ^ 

5.  Highways  open  to  new  uses. — Macomber  v.  Nichols,  34  Mich. 
212,  22  Am.  Rep.  522;  Indiana  Springs  Co.  v.  Brown,  165  Ind.  465, 
74  N.  E.  Rep.  615,  1  L.  R.  A.  (U.  S.)  238;  Nason  v.  West,  31  Misc. 
(N  Y.)  583,  65  N.  Y.  Supp.  651;  Towle  v.  Morse,  68  Atl.  Rep.  1044; 
Mclntyre  v.  Omer,  166  Ind.  57;  Carter  v.  Northwestern  Tel.  Exch., 
60  Minn.  539;  Carli  v.  Stillwater  St.  Ry.  &  Transfer  Co.,  28  Minn. 
373,  41  Am.  Rep.  290,  10  N.  W.  Rep.  205. 

Any  method  of  travel  may  be  adopted  by  individual  members 
of  the  public  which  is  an  ordinary  method  of  locomotion  or  even  an 
extraordinary  method,  if  it  is  not  of  itself  calculated  to  prevent  a 
reasonably  safe  use  of  the  streets  by  others.  Chicago  v.  Banker,  112 
111.  App.  94. 

6.  Transit  cannot  be  taxed. — Ci-andall  v.  Nevada,  6  Wall. 
(U.  S.)   35. 

The  right  of  transit  through  «ach  state,  with  every  species 
of  property   known   to  the  Constitution   of   the  United   States,   and 


HISTORICAL.  23 

The  New  York  motor  vehicle  law  of  1904  has  been 
widely  copied  throughout  the  Union.  This  statute  has, 
however,  proven  to  be  inadequate  and  in  all  probability 
changes  will  be  made  in  the  legislation  very  soon.  The 
simpler  an  automobile  law  is  the  better,  provided  it  accom- 
plishes its  legitimate  purposes ;  therefore  there  has  been  in 
tlie  past  much  hesitation  in  amending  the  New  York  enact- 
ment for  fear  that  a  fairly  good  law  would  be  spoiled. 

Effort  has  been  made  to  persuade  Congress  to  enact  a 
Federal  automobile  registration  law  on  the  theory  that  in- 
terstate travel  for  pleasure  constitutes  interstate  commerce. 
This  has  failed.  It  is  doubted  that  interstate  automobile 
travel  constitutes  interstate  commerce,  but  it  is  suggested 
that  such  a  measure  might  be  within  the  domain  of  Con- 
gress if  framed  upon  the  theory  of  protecting  the  inter- 
state commerce  actually  carried  on  over  interstate  high- 
ways. 

The  latest  development  in  motor  vehicle  legislation  is 
the  appearance  of  a  movement  to  have  enacted  uniform 
automobile  laws  in  the  various  States.  Uniform  automo- 
bile laws  would  greatly  facilitate  interstate  touring  and 
commercial  travel,  but  it  is  hardly  possible  to  have  many 
States  enact  the  same  kind  of  a  motor  vehicle  law  since 
conditions  are  different  in  the  different  jurisdictions. 
Moreover,  the  registration  or  license  fees  adequate  for  one 
State  would  under  certain  conditions,  due  to  the  number 

recognized  by  that  paramount  law,  is  secured  by  that  instrument  to 
each  citizen,  and  does  not  depend  upon  the  uncertain  and  change- 
able ground  of  mere  comity.  Ex  parte  Archy,  9  Cal.  147.  In  this 
case  the  court  asks,  "  is  not  this  right  of  transit  across  the  terri- 
tory of  a  sister  State  one  of  the  necessary  incidents  of  the  purposes 
and  ends  for  which  the  federal  government  was  created?"  (See 
page  162.)  The  following  cases  are  cited  by  the  court.  Lydia  v. 
Rankin,  2  A.  K.  Marsh  (Ky.)  820;  Willard  v.  People,  4  Scam.  Rep. 
461;  Julia  v.  McKinney,  3  Mo.  272. 


24  THE  LAW  OF  AUTOMOBILES. 

of  automobiles  and  the  location  of  the  State,  be  insufficient 
for  another  State.  Precise  uniformity  in  automobile  legis- 
lation throughout  the  United  States  will  be  utterly  Impos- 
sible.^ 

§  7.  Tendencies  in  judicial  decisions. 

That  tlie  courts  reflect  public  sentiment  is  well  known. 
This  is  as  it  should  be,  provided  no  positive  rule  of  law  is 
warped  or  violated,  since  public  sentiment  is  most  always 
right.  However,  the  courts  should  not  blind  their  eyes  to 
reason,  and,  merely  because  there  happens  to  be  some  local 
and  temporary  public  agitation  concerning  the  automobile 
due  to  an  automobile  collision,  for  example,  manifest  the 
slightest  prejudice  against  the  automobilist.  All  the  courts 
of  the  United  States  before  whom  the  question  as  to 
whether  the  automobile  is  an  agency  dangerous  per  se, 
have  emphatically  held  that  it  is  not  per  se  dangerous.    The 

7.  The  abolition  of  arbitrary  speed  limitations. — The  state 
of  Connecticut  has  abolished  specific  maximum  speed  limits  for  auto- 
mobiles, and  has,  by  legislative  enactment,  made  it  a  matter  of  per- 
sonal responsibility  on  the  part  of  the  automobilist  to  drive  safely, 
making,  however,  a  speed  of  over  25  miles  an  hour  for  a  certain 
distance  prima  facie  evidence  of  dangerous  driving.  Automobilists 
and  automobile  clubs  throughout  the  United  States  have  maintained 
that  it  is  unfair  to  motorists  for  the  State  to  prescribe  arbitrary 
speed  limits,  since  it  is  a  very  difficult  matter  to  say  just  how  fast 
an  automobile  should  travel  under  all  circumstances.  There  is 
much  truth  in  this  claim,  but  it  is  not  the  careful  driver  who  neces- 
sitates the  enactment  of  speed  regulations.  Legislation  limiting 
speed  is  prompted  by  reckless  automobiling,  which  in  almost  all 
cases  consists  in  driving  at  a  dangerous  rate  of  speed.  The  State 
Is  compelled  to  control  reckless  drivers  in  order  to  protect  all  the 
users  of  the  highway.  We  will  watch  with  much  interest  the  working 
of  the  Connecticut  law.  It  is  too  early  now  to  say  what  may  be 
expected  from  the  abolishment  of  specific  speed  limits;  but  before 
other  States  follow  the  example  of  Connecticut,  it  would  be  well  to 
study  the  benefits  and  detriments  resulting  from  the  operation  of 
that  commonwealth's  legislation. 


HISTORICAL.  25 

Appellate  Division  of  the  Supreme  Court  of  New  York 
has  declared  that  the  automobile  is  no  more  dangerous  per 
se  than  a  carriage.  The  sound  judicial  tendency  has  been 
to  enlarge  the  motorist's  rights  consistent  with  the  safety 
of  the  public. 


CHAPTER  in 
NATURE  AND  STATUS  OF  AUTOMOBILE. 

Sec.  1.  Automobile  not  a  machine  only. 

2.  Automobile  not  a  dangerous  machine. 

3.  Motive  power  as  affecting  status. 

4.  Advantages  over  animal-drawn  vehicles. 

5.  Tendency  to  frighten  horses. 

6.  Judicial  notice  of  characteristics. 

7.  Classification  of  automobiles. 

8.  Automobiles  as  carriers. 

§  1.  Automobile  not  a  machine  only. 

The  auloniobile  is  something  more  than  a  mere  machine. 
The  mechanical  part  of  the  motor  vehicle  is  only  a  sub- 
stitute for  animal  pOAver.  Aside  from  its  novel  method  of 
propulsion  and  guidance,  the  automobile  is  not  substan- 
tally  different  from  any  other  ordinary  vehicle  which 
travels  on  the  public  ways.  However,  it  possesses  many 
characteristics  which  take  it  out  of  the  category  of  the 
older  means  of  transportation,  as  will  be  seen  later  on. 
As  has  been  said  before,  it  is  a  carriage,  and  a  vehicle,  and 
not  only  is  it  a  most  efficient  means  of  transportation,  but 
it  constitutes  a  most  useful  mode  of  road  traveling  either 
for  pleasure  or  profit.  It  is  hardly  necessary  to  mention 
that  an  automobile  is  personal  property,  and  the  fact  that 
it  is  property,  affords  to  the  owner  the  protection  of  con- 
stitutional provisions,  both  State  and  Federal,  relating  to 
taxation  and  interstate  transit.^ 

1.   Not  a  machine   merely. — See   Baker    v.    City    of    Fall    River, 
(Mass.  1905)  72  N.  E.  Rep.  336. 
Not   a  work    of   art. — The   nature   of   an    automobile   was   con- 

[26] 


NATURE  AND  STATUS  OF  AUTOMOBILE.  27 

§  2.  Automobile  not  a  dangerous  machine. 

It  is  believed  to  be  a  common  opinion  among  many  that  < 

the  automobile  constitutes  a  dangerous  machine,  and  that 
the  operation  of  the  motor  vehicle  on  the  public  thorough-  0 

fares  is  necessarily  hazardous.  This  is  a  mistaken  view. 
The  motor  carriage  is  not  to  be  classed  with  railroads, 
which,  owing  to  their  peculiar  and  dangerous  character, 
are  subject  to  legislation  imposing  many  obligations  on 
them  which  attach  to  no  others.^  Certainly  a  motor  ve- 
hicle is  not  a  machine  of  danger  when  controlled  by  an 


sidered  in  the  case  of  Walker  v.  Grant  Bros.  Automobile  Co.,  124 
Mo.  App.,  628,  and  the  Court  says:  — 

"  An  automobile  is  not  a  work  of  art,  nor  a  machine  about 
which  there  can  be  any  very  peculiar  fancy  or  taste,  but  It  ia 
not  a  common,  gross  thing,  like  a  road-wagon  or  an  ox-cart." 

The  decision  in  this  case  had  to  do  with  the  rights  of  a  purchaser 
of  an  automobile,  where  the  manufacturer  agreed  that  the  automo- 
bile would  be  "  satisfactory  "  to  the  purchaser.  The  Court  held  that 
in  case  the  purchaser  is  dissatisfied  under  such  an  agreement,  the 
machine  may  be  returned  and  the  price  recovered  back,  no  matter 
if  the  purchaser's  dissatisfaction  is  unreasonable  or  groundless. 

The  right  of  transit  through  each  State  with  every  species 
of  property  known  to  the  Constitution  of  the  United  States,  and 
recognized  by  that  paramount  law,  is  secured  by  that  instrument 
to  each  citizen,  and  does  not  depend  upon  the  uncertain  and  change- 
able ground  of  mere  comity. — Ex  parte  Archy,  9  Cal.  147. 

In  this  case  the  court  asks,  "  Is  not  this  right  of  transit  across 
the  territory  of  a  sister  State  one  of  the  necessary  incidents  of 
the  purposes  and  ends  for  which  the  Federal  Government  was 
created?"  The  following  cases  are  cited  by  the  court:  Lydia  v. 
Rankin,  2  A.  K.  Marsh  (Ky.)  820;  Willard  v.  People,  4  Scam.  Rep. 
461;  Julia  v.  McKinney,  3  Mo.  272. 

The  principal  case  cited  here  is  in  line  with  the  decision  in  Cran- 
dall  V.  Nevada,  6  Wall  (U.  S.)  35.  The  bearing  which  these  de- 
cisions have  on  the  right  of  the  Federal  Government  to  regulate 
interstate  automobile  travel  is  of  the  utmost  importance.  Inter- 
state transit  can  no  more  be  taxed  than  interstate  commerce. 

2.  Railroad  legislation.— Jones  v.  Hoge,  92  Pac.  Rep.  433;  Bald- 
win on  American  Railroad  Law,  p.  217.  '" 


28  THE  LAW  OF  AUTOMOBILES. 

intelligent,  prudent  driver.  The  hazard  in  many  cases  to 
which  the  safety  of  the  public  may  be  exposed,  results 
from  the  personal  part  played  in  motoring,  rather  than 
from  the  nature  of  the  vehicle.  (Lewis  v.  Amorous,  (Ga. 
App.  1907)  59  S.  E.  Rep.  338).  It  is  evident,  therefore, 
that  it  is  in  the  manner  of  driving  the  vehicle,  and  that 
alone,  which  threatens  the  safety  of  the  public.  The 
ability  immediately  to  stop,  its  quick  response  to  guidance, 
its  unconfined  sphere  of  action,  would  seem  to  make  the 
automobile  one  of  the  least  dangerous  of  conveyances.^ 

3.  Dangerous  characteristics. — Mclntyre  v.  Orner,  166  Ind.  57, 
76  N.  E.  Rep.  750.  4  L.  R.  A.  (U.  S.)  1130.  See  Yale  Law  Journal, 
Dec.  1906. 

"  The  danger  of  rapidly  moving  machinery  calls  for  the  exer- 
cise of  care  on  the  part  of  its  owner  to  avoid  damage  to  persons 
lawfully  near  it.  .  .  .  To  the  person  injured,  however,  such  ma- 
chinery is  suggestive  of  danger,  and  he  must  exercise  remarkable 
care  accordingly.  And  disregard  of  such  danger  ...  is  contributory 
negligence  suflScient  to  bar  recovery.  Jaggard  on  Torts,  vol.  IL,  pp. 
862,  863. 

A  motor  car,  like  a  carriage  and  pair,  is  in  itself  harmless 
enough;  but  if  the  carriage  is  driven  in  a  crowded  thoroughfare  at 
the  utmost  speed  that  can  be  got  out  of  the  two  horses,  it  becomes 
to  all  intents  as  dangerous  a  vehicle,  and  as  much  an  instrument 
of  terror,  as  a  motor  car  would  be  when  driven  without  any  con- 
sideration or  regard  for  the  safety  of  the  persons  in  the  thorough- 
fare. The  gravamen  of  the  indictment  against  motorists  as  a  class 
is  that  a  large  proportion  of  the  individuals  composing  that  class 
habitually  drive  their  motor  cars,  whether  intentionally  or  inad- 
vertently, with  a  total  disregard  for  the  safety  or  comfort  of  other 
persons  using  the  road.  That  such  an  evil  exists  and  that  active 
means  should  be  taken  to  secure  its  immediate  diminution  or  sup- 
pression cannot  be  denied.  The  proper  adjustment  of  the  respective 
rights  of  persons  owning  and  traveling  in  motor  cars  and  of  persons 
lawfully  using  the  highways  and  public  roads  is  the  serious  prob- 
lem calling  for  solution.  These  two  sections  of  the  public  each 
have  definite  legal  rights,  though  there  seems  to  be  as  yet  a  very  in- 
definite conception  of  the  nature  of  such  rights.  The  Justice  of  the 
Peace,  vol.  LXIX.,  No.  39,  p.  458. 

"A  cap  with   a   defective   brake   is   not   such   an   immediately 


NATURE  AND  STATUS  OF  AUTOMOBILE.  29 

Not  dangerous  per  se. — ^That  the  courts  have  refused  to 
stamp  the  automobile  as  an  inherently  dangerous  machine, 
should  be  stated  at  the  outset.  To  use  legal  phraseology, 
the  motor  vehicle  is  not  considered  in  law  as  dangerous 
per  se.  The  fact  that  it  has  been  judicially  established  that 
the  automobile  is  not  inherently  dangerous,  is  of  the  great- 
est importance  to  automobilists  and  the  automobile  industry 
of  the  United  States,  since  a  limit  has  now  been  placed 
upon  the  character  of  motor  vehicle  legislation  which  may 
constitutionally  be  enacted. 

The  Court  of  Appeals  of  Georgia,  in  the  case  of  Lewis  v. 
Amorous,  59  S.  E.  Rep.,  338,  says,  concerning  the  danger- 
ous character  of  automobiles : — 

"  It  is  insisted  in  the  argument  that  automobiles  are  to 
be  classed  with  ferocious  animals,  and  that  the  law  relating 
to  the  duty  of  the  owners  of  such  animals  is  to  be  applied. 
It  is  not  the  ferocity  of  the  automobile  that  is  to  be  feared, 
but  the  ferocity  of  those  who  drive  them.  Until  human 
agency  interferes  they  are  usually  harmless.  While  by 
reason  of  the  rate  of  pay  allotted  to  the  judges  of  this 
State,  few,  if  any,  have  ever  owned  one  of  these  machines, 
yet  some  of  them  have  occasionally  ridden  in  them,  thereby 
acquiring  some  knowledge  of  them;  and  we  have,  there- 
dangerous  instrument  as  to  render  a  railroad  company  liable  to  any 
one  injured  thereby,  in  the  absence  of  contract  or  other  relation." 
Jaggard  on  Torts,  vol.  II.,  p.  859. 

A  bicycle  is  in  itself  an  innocent  vehicle.  It  is  entitled  to  the 
rights  of  the  road  (but  not  of  the  sidewalk)  equally  with  a  carriage 
or  other  vehicle;  and,  if  it  is  going  at  such  a  rate  of  speed  as  ta 
frighten  horses,  there  is  liability  on  the  part  of  the  rider  only  when 
his  want  of  care  can  be  shown.  Carriages  and  other  vehicles  drawn 
by  horses  become  dangerous  because  of  the  motion  given  to  them, 
and  because  of  the  tendency  of  horses  to  run  away  and  Dtherwise 
do  damage.     Jaggard  on  Torts,  vol.  II.  p.  859. 

No  more  dangerous  tlian  horse  and  carriage. — Cunningham 
V.  Castle,  127  N.  Y.  App.  Div.  580,  111  N.  Y.  Supp.  1057. 


^ 


30  THE  LAW  OF  AUTOMOBILES. 

fore,  found  out  that  there  are  times  when  these  machines 
not  only  lack  ferocity,  but  assume  such  an  indisposition  to 
go  that  it  taxes  the  limit  of  human  ingenuity  to  make  them 
move  at  all.  They  are  not  to  be  classed  with  bad  dogs, 
vicious  bulls,  evil-disposed  mules,  and  the  like." 

The  Supreme  Court  of  Washington,  in  the  recent  case 
of  Jones  V.  Hoge,  92  Pac.  Rep.,  433,  says,  concerning  the 
automobile's  legal  status  : — 

"  We  do  not  believe  that  the  automobile  can  be  placed 
in  the  same  category  as  locomotives,  gunpowder,  dynamite, 
and  similarly  dangerous  machines  and  agencies.  It  is  true 
that  the  operation  of  these  machines  is  attended  with  some 
dangers  not  common  to  the  use  of  ordinary'  vehicles,  and 
we  believe,  and  have  already  held,  that  those  who  operate 
these  machines  must  be  held  to  that  degree  of  care  which 
is  commensurate  with  the  dangers  naturally  incident  to 
their  use." 
\  The  courts  of  the  various  States  of  the  United  States 
have  been  very  free  in  discussing  the  motor  car's  position 
in  the  law,  but  the  two  cases  above  quoted  are  the  leading 
and  most  important  of  all  the  legal  decisions  concerning 
the  automobile  or  its  operation,  with  the  exception  of  the 
leading  case  of  Cunningham  v.  Castle,  decided  by  the  Ap- 
pellate Division  of  the  Supreme  Court  of  New  York, 
(127  N.  Y.  App.  Div.  580),  which  held  that  the  automobile 
is  not  a  dangerous  device.  It  is  an  ordinary  vehicle  of 
pleasure  and  business.  It  is  no  more  dangerous  than  a 
team  of  horses  and  a  carriage,  or  a  gun,  or  a  sail-boat,  or 
a  motor  launch. 

Again,  in  the  case  of  Mclntyre  v.  Orner,  166  Ind.,  57, 
the  Supreme  Court  of  Indiana  says: — 

"  There  is  nothing  dangerous  in-  the  use  of  an  automo- 
bile when  managed  by  an  intelligent  and  prudent  driver.  Its 
guidance,  its  speed,  and  its  noise  are  all  subject  to  quick 


NATURE  AND  STATUS  OF  AUTOMOBILE.  31 

and  easy  regulation,  and  under  the  control  of  a  competent 
and  considerate  manager  it  is  as  harmless,  or  may  soon 
become  as  harmless,  on  the  road,  as  other  vehicles  in  com- 
mon use.  It  is  the  manner  of  driving  an  automobile  on  the 
highway,  too  often  indulged  in  by  thoughtless  pleasure 
seekers  and  for  the  exploitation  of  a  machine,  that  consti- 
tutes a  menace  to  public  safety." 

Automobiles  and  horse  vehicles  compared. —  In  Watts 
V.  Stroudsburg  Passenger  Railway  Company,  34  Penn. 
Co.  Ct.,  Rep.  377,  the  Court  compares  automobiles  and  ( 

horse-drawn   vehicles    as    follows : — The    use   and   opera-  / 

tion  of  the  ordinary  vehicle  drawn  by  a  horse,  or  horses, 
has  been  known  for  so  many  years  that  every  man  is 
charged  with  knowledge  as  to  the  movement  of  such  and 
the  ordinary  speed,  and,  therefore,  a  horse  or  horses  and 
w^agon  happening  to  be  on  the  track  of  an  electric  railway, 
the  motorman  on  an  electric  car  is  bound  by  the  knowledge 
of  how  fast  the  horse,  or  horses,  can,  or  will,  ordinarily 
travel,  and  he  must  operate  and  control  his  car  with  that 
fact  taken  into  consideration. 

The  movement  of  an  automobile  has  no  such  certainty. 
The  movement  of  the  ordinary  horse  is  from  a  slow  walk 
of  about  2  miles  an  hour  to  a  trot  or  pace  of  probably 
from  6  to  10  miles  an  hour,  the  latter  speed  very  rarely, 
however,  being  reached  when  a  horse  is  traveling  between 
the  tracks  of  an  electric  railway  company. 

The  speed  or  movement  of  an  automobile  is  anywhere 
from  a  few  miles  an  hour  to  anywhere  between  12  and  30 
miles  an  hour.  It  is  within  common  experience  that  they 
glide  off  and  in  tracks,  run  behind  electric  cars  and  then 
turn  off  the  track,  run  around  the  cars  and  run  on  the  track 
again  and  easily  keep  ahead  of  a  car  moving  at  an  ordinary 
speed,  and,  when  occasion  requires,  they  easily  move  at  a 
rate  of  speed  which  the  trolley  does  not  often  obtain. 


32  THE  LAW  OF  AUTOMOBILES. 

The  ordinary  man  knows  that  it  is  not  easy  for  a  person 
to  get  out  of  an  electric  railway  track  with  a  horse  and 
wagon,  nor  can  it  be  accomplished,  ordinarily,  quickly. 
The  horse  cannot  move  fast  over  the  tracks,  and  the  wheels 
of  the  wagon  are  apt  to  slide ;  and  it  is  also  within  the 
common  knowledge  of  people  living  in  communities  where 
automobiles  are  used  that  they  can  easily  turn  in  and  out 
of  electric  railway  tracks  and  do  it  quickly. 

How  is  the  automobilist  considered  by  the  courts  ?  it 
may  be  asked.  Is  he  to  be  looked  upon  invariably  as  a 
speed  maniac?  A  violator  of  the  rights  of  the  people  on 
the  public  highways?  After  being  convicted  of  speeding, 
a  criminal?  As  between  the  inanimate  chattel,  the  auto- 
mobile, and  the  automobilist,  the  latter  constitutes  the  only 
proper  subject  of  legal  regulation,  and  only  when  he  does 
not  do  right. 

"  It  is  the  manner  of  driving  an  automobile  on  the  high- 
way, too  often  indulged  in  by  thoughtless  pleasure  seekers 
and  for  the  exploitation  of  a  machine,  that  constitutes  a 
menace  to  public  safety,"  says  the  Supreme  Court  of 
Indiana,  in  Mclntyre  v.  Orner,  i66  Ind.,  57. 

"  Until  human  agency  intervenes  they  are  usually  harm- 
less," says  the  Court  of  Appeals  of  Georgia,  in  Lewis  v. 
Amorous,  59  S.  E.  Rep.,  340. 

Adverse  judicial  statements  made  by  the  courts  ap- 
parently condemning  the  automobile  have  not  been  infre- 
quent. Thus,  the  Supreme  Court  of  Illinois  has  stated 
that  it  is  a  matter  of  common  knowledge  that  an  automo- 
bile is  likely  to  frighten  horses.  It  is  propelled  by  a  power 
within  itself,  is  of  unusual  shape,  is  capable  of  a  high  rate 
of  speed,  and  produces  a  puffing  noise  when  in  motion. 
All  this  makes  such  a  horseless  vehicle  a  source  of  danger 
to  pedestrians  and  persons  traveling  on   the  highway  in 


NATURE  AND  STATUS  OF  AUTOMOBILE.  33 

vehicles  drawn  by  horses.'*  The  Supreme  Judicial  Court 
of  Massachusetts  has  declared  that  automobiles  are  capable 
of  being  driven,  and  are  apt  to  be  driven,  at  such  a  high 
rate  of  speed,  and  when  not  properly  driven  are  so  dan- 
gerous as  to  make  some  regulation  necessary  for  the  safety 
of  other  persons  on  the  public  ways.^  Notwithstanding 
these  and  similar  judicial  utterances,  it  is  particularly 
noticeable  that  up  to  the  present  time  no  court  had  stated 
or  decided  that  the  automobile  itself  is  a  dangerous  vehicle 
either  to  the  occupants  or  to  the  public.  Whatever  lan- 
guage the  courts  have  used,  which  apparently  condemns 
motoring,  has  been  directed  against  the  careless  chauffeur 
or  operator  and  not  against  the  motor  car.  The  foregoing 
statements  may  be  subject  to  slight  modification  for  the 
reason  that  it  is  stated  in  an  Ohio  case  that  the  automobile 
is  more  dangerous  than  the  street  car,  because  the  latter, 


4.  Supreme  Court  of  Illinois.— Christie  v.  Elliott,  216  111.  31,  1 
L.  R.  A.  (N    S.)   124,  74  N.  E.  Rep.  1035. 

5.  Supreme  Judicial  Court  of  Massacliusetts. — Com.  v.  Boyd, 
188  Mass.  79,  74  N.  E.  Rep.  255;  Com.  v.  Kingsbury,  85  N.  E.  Rep.  848. 

In  Commonwealth  v.  Kingsbury,  85  N  E.  Rep.  848,  the  Su- 
preme Judicial  Court  of  Massachusetts  in  holding  that  the  regula- 
tion of  the  use  of  automobiles  on  particular  roads,  even  to  their 
complete  exclusion  therefrom,  is  within  the  police  power,  with  a 
view  to  the  safety  of  the  public,  says: 

"  Automobile  are  vehicles  of  great  speed  and  power  whose  appear- 
ance is  frightful  to  most  horses  that  are  unaccustomed  to  them. 
The  use  of  them  introduces  a  new  element  of  danger  to  ordinary 
travelers  on  the  highways,  as  well  as  to  those  riding  in  the  auto- 
mobiles. In  order  to  protect  the  public  great  care  should  be  exer- 
cised in  the  use  of  them.  Statutory  regulation  of  their  speed  while 
running  on  the  highways  are  reasonable  and  proper  for  the  promo- 
tion of  the  safety  of  the  public.  It  is  the  duty  of  the  legislature,  in 
the  exercise  of  the  police  power,  to  consider  the  risks  that  arise 
from  the  use  of  inventions  applying  the  forces  of  nature  in  previously 
unknown  ways.  The  general  principle  is  too  familiar  to  need  dis- 
cussion. It  has  been  applied  to  automobiles  in  the  different  States 
with  the  approval  of  the  courts," 

S 


84  THE  LAW  OF  AUTOMOBILES. 

being  confined  to  tracks,  can  more  easily  be  avoided  in  case 
of  a  threatened  injury.  In  this  case  the  operator  of  an 
automobile  was  arrested,  tried,  and  fined  $25  and  costs  by 
the  pohce  court  of  the  city  of  Columbus.  Ohio,  for  run- 
ning his  automobile  at  an  unlawful  speed  within  the  city 
limits,,  in  violation  of  an  ordinance  of  the  city  of  Columbus, 
which  prohibited  a  speed  in  excess  of  seven  miles  an  hour. 
The  motorist  contended  that  the  law  was  partial  and  dis- 
criminated against  automobiles,  because  another  ordinance 
allowed  street  cars  to  run  at  a  greater  rate.  The  court 
held,  however,  that  such  a  discrimination  was  proper,  be- 
cause street  cars  are  confined  to  their  tracks  and  can  easily 
be  avoided,  whereas  automobiles  have  no  certain  course, 
and  on  that  account  are  much  more  dangerous  to  the  pedes- 
trian.^ 

§  3-  Motive  power  as  affecting  status- 
There  is  no  vehicle  operated  in  the  public  streets  and 
highways  that  bears  much  similarity  to  the  automobile.  The 
bicycle,  it  is  true,  occupies  a  unicjue  position  when  com- 
pared with  the  older  vehicles,  but  the  motor  carriage  occu- 
pies a  position  and  status  of  its  own.  The  motor  car's 
freedom  of  navigation,  speed,  control,  power,  purposes, 
and  the  existence  or  nonexistence  of  noise  in  running  nec- 
essarily stamps  the  automobile  with  a  status  different  from 
that  attached  to  other  vehicles.  Especially  is  this  true  in 
reference  to  the  motive  power  and  its  application.  In  ani- 
mal-drawn vehicles  the  ])o\ver  is  from  the  front.  The  vehi- 
cle is  drawn.  In  automobiles  the  power  is  generally  ap- 
plied from  the  back  of  the  carriage,  and  the  vehicle  is  in 
fact  pushed  along.     This  radical  difference  in  the  appli- 


6.    Automobile  more  danRerona  than  street  car. — Chittenden  V. 
Columbus,  26  Ohio  Cir.  Ct.  531. 


NATURE  AND  STATUS  OF  AUTOMOBILE.  35 

cation  of  power  is  of  importance,  and  may  be  controlling 
in  legal  controversies  in  respect  to  the  condition  of  high- 
ways and  other  matters.  Recent  legislation  has  given  the 
automobile  a  status  of  its  own,  if  nothing  else  has. 

§  4.  Advantages  over  animal-drawn  vehicles. 

The  advantages  of  the  automobile  over  animal-drawn 
vehicles  are  too  numerous  to  mention  in  a  work  of  this 
nature.  However,  there  are  one  or  two  advantageous 
points  in  the  motor  vehicle's  favor  which  should  be  men- 
tioned. We  have  seen  that  there  is  an  alleged  element  of 
danger  in  the  operation  of  the  horseless  carriage.  Aside 
from  this,  however,  every  other  characteristic  of  the  auto- 
mobile is  decidedly  in  its  favor.  It  leaves  no  filth  in  the 
streets.  It  is  the  most  sanitary  vehicle  that  travels  on  the 
public  ways.  There  certainly  can  never  be  any  police 
regulation  of  the  motor  car's  operation  on  account  of  filth, 
excepting  the  regulation  of  the  emission  of  smoke.  Auto- 
mobiles occupy  less  space  on  the  streets  and  highways  than 
horse-drawn  vehicles.  The  superiority  of  the  automobile  in 
these  matters  needs  no  further  discussion  to  be  convincing. 

§  5.  Tendency  to  frighten  horses. 

That  the  automobile  has  a  tendency  to  frighten  horses 
unaccustomed  to  its  appearance  must  be  conceded.  This 
has  been  one  of  the  worst  obstacles  to  motoring  and  driv- 
ing, and  has  been  the  cause  of  much  litigation.  However, 
horses  are  fast  being  educated  to  the  sight  of  the  automo- 
bile, and  when  horses  generally  are  no  longer  frightened  at 
its  appearance  the  legislative  regulation  concerning  the 
meeting  of  horses  and  automobiles  on  the  road  will  be  no 
longer  needed  and  without  reason.  As  said  by  the  Supreme 
Court  of  California:  "Of  course,  if  the  use  of  automo- 
biles gradually  becomes  more  common,  there  may  come  a 


3G  THE  LAW  OF  AUTOMOBILES. 

time  when  an  ordinance  like  the  one  here  in  question  [the 
ordinance  prohibited  motoring  at  night  on  country  roads] 
would  be  unreasonable.  As  country  horses  are  frequently 
driven  into  cities  and  towns,  many  of  them  will  gradually 
become  accustomed  to  the  sight  of  automobiles,  and  the 
danger  of  their  use  on  country  roads  will  be  less."  "^ 

In  connection  with  this  subject  it  is  of  interest  to  note 
what  has  been  said  by  the  Appellate  Division  of  the  Su- 
preme Court  of  Nczv  York:  "  Since  the  automobile  has 
come  into  use  upon  our  streets  and  highways  these  accidents 
[resulting  from  frightening  horses]  have  been  common, 
and  actions  to  recover  damages  resulting  therefrom  have 
been  frequent.  These  machines  may  be  used  on  the  public 
highways,  but  horses  will  also  continue  to  be  used  for  a 
time  at  least.  Both  may  be  equally  used  as  motive  power 
in  public  travel.  Some  horses  are  frightened  when  they 
meet  these  machines,  and  it  is  the  duty  of  persons  running 
the  machines  to  exercise  reasonable  care  to  avoid  accident 
when  horses  become  frightened.  It  is  not  pleasant  to  be 
obliged  to  slow  down  these  rapid-running  machines  to  ac- 
commodate persons  driving  or  riding  slow  country  horses 
that  do  not  readily  become  accustomed  to  the  innovation. 
It  is  more  agreeable  to  send  the  machine  along,  and  let  the 
horse  get  on  as  best  he  may,  but  it  is  well  to  understand,  if 
this  course  is  adopted  and  accident  and  injury  result,  that 
the  automobile  owner  may  be  called  upon  to  respond  in 
damages  for  such  injuries."  ® 

§  6.  Judicial  notice  of  characteristics. 

The  court  will  take  judicial  notice  that  automobiles  may 

7.  Frightening;    horaes. — Ex   parte   Berry,    (Cal.    1905)    82    Pac. 
Rep.  44. 

8.  Reaponaibility    for    friglitening   horaei. — Murphy    v.    Wait, 
102  N.  Y.  App.  Dlv.  121,  92  N.  Y.  Supp.  253. 


NATURE  AND  STATUS  OF  AUTOMOBILE.  37 

be  driven  at  a  high  rate  of  speed.''  Under  a  statutory  pro- 
vision requiring  courts  to  take  judicial  notice  "  of  the 
significance  of  all  English  words  and  phrases,"  a  court  w^ill 
assume  judicial  knowledge  of  an  automobile,  its  character- 
istics, and  the  consequences  of  its  use.  As  said  by  the  Su- 
preme Court  of  California:  "  We  may  assume  *  *  * 
to  have  what  is  common  and  correct  knowledge  about  an 
automobile.  Its  use  as  a  vehicle  for  traveling  is  compara- 
tively recent.  It  makes  an  unusual  noise.  It  can  be,  and 
usually  is,  made  to  go  on  common  roads  at  great  velocity — 
at  a  speed  many  times  greater  than  that  of  ordinary  vehicles 
hauled  by  animals;  and  beyond  doubt,  it  is  highly  danger- 
ous when  used  on  country  roads,  putting  to  great  hazard 
the  safety  and  lives  of  the  mass  of  the  people  who  travel 
on  such  roads  in  vehicles  drawn  by  horses."  '^^  The  cor- 
rectness of  the  foregoing  statement  is  not  intended  to  be 
vouched  for.  The  quotation  is  given  merely  on  the  ques- 
tion of  judicial  notice. 

§  7-  Classification  of  automobiles. 

Automobiles  have  been  divided  into  three  classes :  Heavy 
omnibuses  or  cars  for  road  use  in  carrying  passengers  or 
goods;  pleasure  carriages  for  use  in  driving  on  the  streets 
or  roads  in  place  of  the  ordinary  horse  and  carriage; 
bicycles,  tricycles,  or  quadricycles  furnished  with  a  motor 
to  relieve  the  rider  of  the  work  of  operating  the  pedals  and 
to  increase  speed. ^^ 

9.  Judicial  notice. — People  v.  Schneider,  12  Det.  L.  N.  32,  69 
L.  R.  A.  345,  (Mich.  1905)  103  N.  W.  Rep.  172,  wherein  the  court 
says,  "  We  may  take  judicial  notice  that  many  of  these  automobiles 
may  be  driven  at  a  speed  of  at  least  forty  miles  an  hour.  Driven 
by  indifferent,  careless,  or  incompetent  operators,  these  vehicles  may 
be  a  menace  to  the  safety  of  the  public." 

10.  "What  the  courts  know  about  automobiles. — Ex  parte 
Berry,   (Cal.  1905)   82  Pac.  Rep.  44. 

11.  Classification  of  automobiles. — Encyc.  Brit.  vol.  25,  p.  303. 


38  THE  LAW  OF  AUTOMOBILES. 

§  8.  Automobiles  aa  carriers. 

An  automobile  may  be  used  as  a  common  carrier,  a  pri- 
vate carrier,  or  a  personal  private  conveyance.  Public 
motor  vehicles,  such  as  sight-seeing  cars,  taxicabs,  and 
others  which  are  employed  in  carrying  all  persons  apply- 
ing for  transportation,  come  within  the  definition  that  a 
common  carrier  of  passengers  is  one  who  undertakes  for 
hire  to  carry  all  persons  who  may  apply  for  passage. ^^  But 
to  constitute  one  a  common  carrier  it  is  necessary  that  he 
should  hold  himself  out  as  one.  A  carrier  of  passengers 
who  undertakes  to  carry  all  persons  who  apply  to  him  for 
transportation  is  engaged  in  a  public  employment,  and  is  a 
public  or  common  carrier  of  passengers.  "  A  common 
carrier  of  passengers,"  says  Judge  Thompson,  "  is  one  who 
undertakes  for  hire  to  carry  all  persons  indefinitely  who 
may  apply  for  passage." 

12.  Common  carriers. — Gillingham  v.  Ohio  River  R.  Co.,  35  W. 
Va.  588.  14  S.  E.  Rep.  243,  14  L.  R.  A.  798,  29  Am.  St.  Rep.  827.  See 
the  chapter  coDcerning  taxicabs  and  public  automobiles. 


CHAPTER  rV. 

RIGHT  OP  AUTOMOBILES  TO  USE  HIGHWAYS  AND  STREETS. 

Sec.  1.  Highways  defined. 

2.  Roads  defined. 

3.  Streets  defined. 

4.  General  purposes  of  highways  and  .streets. 

5.  New  means  of  transportation. 

6.  Equal  rights  of  automobiles  on  public  ways. 

7.  Automobiles  have  no  superior  right  of  way. 

8.  Rights  on  ferries  and  vessels. 

9.  Exclusion  of  automobiles  from  highways. 

10.  Tolls. 

11.  Compelling  privilege  of  using  road. — Pleading. 

§  1.  Highways  defined. 

Ways  are  either  public  or  private.  A  way  open  to  all 
people  is  a  public  highway.  It  will  be  noted  that  all  the 
automobile  regulations  apply  only  when  an  automobile  is 
operated  on  public  .avenues  of  travel.  To  drive  a  motor 
vehicle  on  a  private  way,  it  is  not  necessary  to  register  the 
machine,  nor  need  any  specific  statutory  speed  limit  be 
complied  with.  The  term  highway  is  the  generic  name  for 
all  kinds  of  public  ways,  including  county  and  township 
roads,  streets  and  alleys,  turnpikes  and  plank  roads,  rail- 
roads and  tramways,  bridges  and  ferries,  canals  and  navi- 
gable rivers.     Every  public  thoroughfare  is  a  highway.* 

1.  Higtways. — Elliott  on  Roads  and  Streets,    (2d.  ed.)    pp.   1,  2. 

Distinction  bet^^een  *'  highw^ay "  and  "  road." — Johnson  V. 
State,  58  S.  W.  Rep.  265. 

Destrnction  of  sign  posts. — Wilfully  defacing,  injuring  or 
destroying  any  mile  post  index  board,  sign  post,  bridge  or  causeway 

[39] 


40  THE  LAW  OF  AUTOMOBILES. 

§  2.  Eoads  defined. 

A  road  is  a  passage  ground  appropriated  to  public  travel. 
The  word  "  road  "  cannot,  however,  be  said  to  be  one  of 
uniform  meaning;  it  has  been  variously  defined,  and  is 
often  enlarged  or  restricted  by  the  language  with  which  it 
is  associated.  The  meaning  of  the  word  in  statutes  is  as- 
certainable from  the  context  and  purpose  of  the  particular 
legislative  enactment  in  which  it  is  found.- 

§  3.  Streets  defined. 

A  street  is  a  road  or  public  way  in  a  city,  town,  or  vil- 
lage. A  way  over  land  set  apart  for  public  travel  in  a  town 
or  city  is  a  street,  no  matter  by  what  name  it  may  be  called ; 
it  is  the  purpose  for  which  it  is  laid  out  and  the  use  made  of 
it  that  determines  its  character.  As  the  way  is  common 
and  free  to  all  people,  it  is  a  highw^ay,  and  it  is  proper  to 
affirm  that  all  streets  are  highways,  although  not  all  high- 
ways are  streets.  Streets  resemble,  in  many  particulars, 
ordinary  public  roads,  but  there  are,  nevertlieless,  very  im- 
portant differences  between  the  two  classes  of  public  ways. 
The  purpose  for  which  they  are  established  is  primarily  the 
same,  that  of  public  travel,  but  many  uses  may  properly  be 


constitutes  a  misdemeanor,  even  though  the  sign  or  post,  as  the 
case  may  be,  was  erected  by  private  individuals.  Pullman  v.  State. 
88  Ala.  190;    7  S.  Rep.  148. 

2.   Roads. — Elliott  on  Roads  and  Streets,   (2d  ed.)    pp.  6,  7. 

Roadway  is  defined  in  the  ordinances  for  the  city  of  New  York 
as  "that  portion  of  any  street  which  is  included  between  the  curbs 
or  curb-lines  thereof  and  is  designed  for  the  use  of  vehicles." 

Pent  roads.— The  term  "  highway,"  in  the  Vermont  Rev.  St. 
Sections  3178.  3179.  relieving  owners  of  land  from  the  duty  of  main- 
taining fences  on  the  sides  of  the  highways,  does  not  include  pent 
roads.  Carpenter  v.  Cook.  30  At.  Rep.  998.  999.  C7  Vt.  102;  French  v. 
Holt.  53  Vt.  364;  Wolcott  v.  Whitcomb,  40  Vt.  40,  41;  Bridgman  v. 
Town  of  Hardwick.  31  At.  Rep.  33.  34.  67  Vt.  132.  Contra  see  Town 
of  WhiLingham  v.  Bowen,  22  Vt.  317. 


RIGHT  OF  AUTOMOBILES  TO  USE  HIGHWAYS,  ETC.      41 

made  of  streets  which  cannot  rightfully  be  made  or  ordi- 
nary suburban  roads.  The  rights  of  the  public  are  much 
greater  in  streets  than  in  the  roads  of  the  rural  districts, 
and  the  methods  of  regulating  their  use,  improvement,  and 
repair  are  materially  different.  Where  a  statute  uses  the 
term  street,  and  does  so  with  reference  to  a  town  or  city, 
and  there  are  no  limiting  or  explanatory  words,  it  must  be 
taken  to  mean  a  street  in  the  true  sense  of  the  term.  It  is 
sometimes  necessary  to  discriminate  between  the  genus 
highways  and  the  species  streets,  but  when  the  species  is 
designated  there  seldom  can  be  any  difficulty  in  determining 
what  class  of  public  ways  is  intended,  although  it  will  not 
do  to  conclude,  in  all  cases  where  the  term  highways  is  em- 
ployed, that  streets  are  included.^ 

In  some  of  the  automobile  acts  passed  by  the  States  of 
the  United  States  the  terms  public  highways,  ways,  streets, 
and  other  terms  pertaining  to  highways  have  been  defined, 
as  will  be  seen  from  an  examination  of  the  statutes. 

§  4.  General  purposes  of  highways  and  streets. 

Primarily  the  general  purpose  of  streets  and  highways 
is  that  of  travel  either  on  foot  by  a  pedestrian  or  in  a  vehi- 
cle propelled  by  animal  or  other  power.  The  members  of 
the  public  have  a  right  to  use  the  public  avenues  for  the 
purpose  of  travel  and  the  transportation  of  property.  It  is 
improper  to  say  that  the  driver  of  horses  has  rights  in  the 

3.  Streets.— Elliott  on  Roads  and  Streets,  (2d  ed.)  pp  15  16 
18,  19. 

A  street  is  defined  in  the  ordinances  for  the  city  of  New  York  as 
follows:  "  Every  avenue,  boulevard,  highway,  roadway,  cartway,  lane, 
alley,  strip,  path,  square  and  place  used  by  or  laid  out  for  the  use 
of  vehicles." 

Curb  is  defined  in  the  ordinances  for  the  city  of  New  York  as 
"the  lateral  boundaries  of  that  portion  of  a  street  designed  for  the 
use  of  vehicles,  whether  marked  by  curb-stones  or  not  so  marked." 


42  THE  LAW  OF  AUTOMOBILES. 

road  superior  to  the  driver  of  an  automobile.  Both  have 
the  right  to  use  the  easement,  and  each  is  equally  restricted 
in  the  exercise  of  his  rights  by  the  corresponding  rights  of 
the  other."* 


4.  Purposes  of  streets  and  tighways. — Indiana  Springs  Co.  v. 
Brown.   (Ind.  1905)   74  N.  E.  Rep.  615. 

Public  highways  are  for  the  use  of  travelers  and  they  are  en- 
titled to  use  the  same  unobstructed  in  any  unusual  manner.  Ft 
"Wayne  Cooperage  Co.  v.  Page,  82  N.  E.  Rep.  83. 

In  Cater  v.  Northwestern  Telephone  Exchange  Co.,  63  N.  W. 
Rep.  Ill,  60  Minn.  539,  28  L.  R.  A.  310,  51  Am.  Rep.  543,  Judge 
Mitchell  says  as  follows: 

"If  there  is  any  one  fact  established  in  the  history  of  society  and 
of  the  law  itself,  it  is  that  the  mode  of  exercising  this  (highway) 
easement  is  expansive,  developing  and  growing  as  civilization  ad- 
vances. In  the  most  primitive  state  of  society  the  conception  of  a 
highway  was  merely  a  footpath;  in  a  slightly  more  advanced  state  it 
included  the  idea  of  a  way  for  pack  animals;  and  next  a  way  for 
vehicles  drawn  by  animals;  constituting  respectively  the  iter,  the 
actus,  and  the  via  of  the  Romans.  And  thus  the  methods  of  using 
the  public  highways  expanded  with  the  grovrth  of  civilization  until 
to-day  our  urban  highways  are  devoted  to  a  variety  of  uses  not 
known  in  former  times,  and  never  dreamed  of  by  the  owners  of  the 
soil  when  the  public  easement  was  acquired.  Hence  it  has  become 
settled  law  that  the  public  easement  is  not  limited  to  the  particular 
methods  of  use  in  vogue  when  the  easement  was  acquired,  but  in- 
cludes all  new  and  improved  methods,  the  utility  and  general  con- 
venience of  which  may  afterwards  be  discovered  and  developed  in 
aid  of  the  general  purpose  for  which  highways  are  designed." 

The  easement  of  a  highway  embraces  all  travel  not  prohibited 
by  law  on  foot,  in  carriages,  omnibuses,  stages,  sleighs,  or  other 
vehicles,  as  the  wants  and  habits  of  the  public  demand.  The  right 
of  the  public  in  the  highway  consists  in  the  privilege  of  passage 
and  such  privileges  as  are  annexed  as  incidents  by  usage  or  custom, 
as  the  right  to  make  sewers  and  drains  and  lay  gas  and  water  pipes. 
It  can  hardly  be  questioned  that  the  primary  and  fundamental  pur- 
pose of  a  public  highway,  street,  or  alley,  is  to  accommodate  the 
public  travel,  to  afford  citizens  and  strangers  an  opportunity  to 
pass  and  repass  on  foot  or  In  vehicles  with  such  movable  property 
as  they  may  have  occasion  to  transport,  and  every  man  has  a  right 
to  use  on  the  road  a  conveyance  of  his  own  at  will,  subject  to  such 
proper  regulation  as  may  be  prescribed  by  authority.    The  easement 


RIGHT  OF  AUTOMOBILES  TO  USE  HIGHWAYS,  ETC.      43 

§  5-  New  means  of  transportation. 

That  the  purposes  of  the  public  ways  contemplate  new 
and  improved  means  of  transportation  there  can  be  no 
doubt.  Travelers  are  not  confined  to  horses  and  ordinary- 
carriages.  Animal  or  muscular  power  has  no  exclusive  or 
superior  rights  on  the  public  avenues  of  travel.  The  use  to 
which  the  public  thoroughfare  may  be  put  comprehends  all 
modern  means  of  carrying,  including  the  electric  street  rail- 
road and  the  automobile.  Judge  Cooly  in  1876  said :  "  Per- 
sons making  use  of  horses  as  the  means  of  travel  by  the 
highways  have  no  rights  therein  superior  to  those  who 
make  use  of  the  ways  in  other  modes.  It  is  true  that  loco- 
motion upon  the  public  roads  has  hitherto  been  chiefly  by 
means  of  horses  and  similar  animals,  but  persons  using 
them  have  no  prescriptive  rights,  and  are  entitled  to  the 
same  reasonable  use  of  the  ways  which  they  must  accord 
to  all  others.  Improved  methods  of  locomotion  are  per- 
fectly admissible,  if  any  shall  be  discovered,  and  they  can- 
not be  excluded  from  the  existing  public  roads,  provided 
their  use  is  consistent  with  the  present  methods,  *  *  * 
When  the  highway  is  not  restricted  in  its  dedication  to 
some  particular  mode  of  use,  it  is  open  to  all  suitable 
methods,  and  it  cannot  be  assumed  that  these  will  be  the 
same  from  age  to  age,  or  that  new  means  of  making  the 
way  useful  must  be  excluded  merely  because  their  intro- 
duction may  tend  to  the  inconvenience  or  even  to  the  injury 
of  those  who  continue  to  use  the  road  after  the  same  man- 
ner as  formerly,     A  highway  established  for  the  general 

for  public  travel  is  not  to  be  limited  to  the  particular  modes  of 
travel  in  use  at  the  time  the  easement  was  acquired,  but  extends  to 
and  includes  all  such  new  and  improved  methods  of  travel,  the  util- 
ity and  general  convenience  of  which  may  be  afterwards  discovered 
or  developed,  as  are  in  aid  of  the  identical  use  for  which  the  street 
was  acquired.  Carli  v.  Stillwater  St.  Ry.  &  Transfer  Ck).,  10  N.  W. 
Rep.  205,  28  Minn.  373,  41  Am.  Rep.  290. 


44  THE  LAW  OF  AUTOMOBILES. 

benefit  of  passage  and  traffic  must  admit  of  new  methods 
wherever  it  is  found  that  the  general  benefit  requires 
them."  ^ 

The  Supreme  Court  of  Illinois  has  expressed  itself  as 
follows :  "  To  say  that  a  new  mode  of  passage  shall  be  ban- 
ished from  the  streets,  no  matter  how  much  the  general 
good  may  require  it,  simply  because  streets  were  not  so 
used  in  the  days  of  Blackstone,  would  hardly  comport  with 
the  advancement  and  enlightenment  of  the  present  age."  ^ 

Again  we  find  the  same  principle  announced  in  1905  by 
the  Supreme  Court  of  Indiana,  which  says :  "  In  all  human 
activities  the  law  keeps  up  with  improvement  and  progress 
brought  about  by  discovery  and  invention,  and,  in  respect 
to  highways,  if  the  introduction  of  a  new  contrivance  for 


5.  New  means  of  transportation  may  be  nsed. — Macomber  V. 
Nicholas.  34  Mich.  217,  22  Am.  Rep.  522. 

"  With  respect  to  the  methods  of  travel  and  transportation  on  the 
highway,  as  in  all  other  spheres  of  action,  the  law  seeks  to  adapt 
itself  to  the  new  conditions  arising  from  the  progress  of  invention 
and  discovery.  The  ordinary  highway  is  open  to  all  suitable  methods 
of  use.     Towle  v.  Morse  (Me.,  1908),  68  Atl.  Rep.  1044. 

The  employment  of  an  automobile  on  a  highway  as  a  means  of 
transportation  is  a  lawful  use  of  the  road;  and  if  it  results  In  injury 
to  one  traveling  by  another  mode  the  driver  of  the  machine  cannot  be 
held  liable  for  the  injury,  unless  it  be  made  to  appear  that  he  used 
the  machine  at  a  time  or  in  a  manner  or  under  circumstances  in- 
consistent with  a  proper  regard  for  the  rights  of  others.  Mclntyre 
V.  Orner,  166  Ind.  57. 

"  Automobiles  are  now  recognized  as  legitimate  means  of  convey- 
ance on  the  public  highway.  The  fact  that  horses  unaccustomed 
to  see  them  are  likely  to  be  frightened  by  their  unusual  sound  and 
appearance  has  not  been  deemed  sufficient  reason  for  prohibiting 
their  use,  but  it  is  an  element  in  the  question  of  due  care  on  the 
part  of  the  drivers  of  both  horses  and  motor  cars  and  a  consideration 
to  be  entertained  In  determining  whether  such  care  has  been  exer- 
cised to  avoid  accident  and  injury  In  the  exigencies  of  the  particular 
situation."     Towle  v.  Morse  (Me.,  1908),  68  Atl.  Rep.  1044. 

6.  Cannot  be  banished  from  highways. — Moses  v.  Pittsburgh, 
etc.,   R.   Co.,   21   111.   515. 


RIGHT  OF  AUTOMOBILES  TO  USE  HIGHWAYS,  ETC.      45 

transportation  purposes,  conducted  with  due  care,  is  made 
with  inconvenience  and  even  incidental  injury  to  those 
using  ordinary  modes,  there  can  be  no  recovery  provided 
the  contrivance  is  compatible  with  the  general  use  and  safety 
of  the  road.  It  is,  therefore,  the  adaptation  and  use,  rather 
than  the  form  or  kind  of  contrivance,  that  concerns  the 
courts."  "^ 

§  6.  Equal  rights  of  automobiles  on  public  ways. 

Clearly  the  motor  vehicle  is  an  improved  method  of 
locomotion,  and  if  automobiles  are  operated  in  a  way  com- 
patible with  the  general  use  of  the  public  avenues  of  travel, 
and  are  calculated  to  subserve  the  public  as  a  beneficial 
means  of  transportation,  with  reasonable  safety  to  those 
traveling  by  ordinary  modes,  the  motor  carriage  has  an 
equal  right  with  other  vehicles  in  common  use,  to  occupy 
and  use  the  public  highways  and  streets,  provided  the  statu- 
tory provisions  have  been  complied  with  if  any  exist.^ 

7.  Law  keeps  up  with  progress. — Indiana  Springs  Co.  v.  Brown, 

(Ind.  1905)   74  N.  E.  Rep.  615. 

8.  Equal  rights. — Upton  V.  Windham,  75  Conn.  288;  Christie  v. 
Elliott,  216  111.  31,  L.  R.  A.  (N.  S.)  vol.  1,  p.  124,  74  N.  E.  Rep. 
1035;  Indiana  Springs  Co.  v.  Brown,  (Ind.  1905)  74  N.  E.  Rep.  615; 
Shinkle  v.  Cullough.  (Ky.  1903)  77  S.  W.  Rep.  196;  Silberman  v. 
Huyette,  22  Montg.  Co.  L.  Rep.   (Pa.)   39. 

It  is  not  negligence,  as  a  matter  of  law,  to  use  automobiles  on  the 
public  highways.  Indiana  Springs  Co.  v.  Brown,  (Ind.  1905)  74 
N.  E.  Rep.  615. 

The  owner  of  an  automobile  has  the  right  to  use  the  highways  pro- 
vided in  using  them  he  exercises  reasonable  care  and  caution  for  the 
safety  of  others  and  does  not  violate  the  law  of  the  state.  Christie 
V.  Elliott,  216  111.  31,  L.  R.  A.  (N.  S.)  vol.  1,  p.  124,  74  N.  E.  Rep. 
1035. 

Because  automobiles  are  novel  and  unusual  in  appearance,  and 
for  that  reason  likely  to  frighten  horses  unaccustomed  to  seeing 
them,  is  no  reason  for  prohibiting  their  use.  Indiana  Springs  Co. 
V.  Brown.  (Ind.  1905)  74  N.  E.  Rep.  615. 

Bicycles    have    equal    rights   on    the   public    ways.    Holland    v. 


46  THE  LAW  OF  AUTOMOBILES. 

The  fact  that  an  automobile  is  a  comparatively  new  vehi- 
cle is  beside  the  question.  The  use  of  the  streets  must  be 
extended  to  meet  the  modern  means  of  locomotion.® 

Concerning  the  frequency  of  collisions  between  automo- 
biles and  pedestrians,  it  is  of  interest  to  study  the  opinion 
in  Simeone  v.  Lindsay,  63  At.  Rep.,  779,  by  the  Superior 
Court  of  Delaware,  wherein  Judge  Pennewill  says:  "A 
public  highway  is  open  in  all  its  length  and  breadth  to  the 
reasonable,  common  and  equal  use  of  the  people  on  foot  or 
in  vehicles.  The  owner  of  an  automobile  has  the  same 
right  as  the  owners  of  other  vehicles  to  use  the  highways, 
and  like  them  he  must  exercise  reasonable  care  and  caution 
for  the  safety  of  otliers.  A  traveler  on  foot  has  the  same 
right  to  the  use  of  the  public  highway  as  an  automobile  or 
any  other  vehicle.  On  using  such  highway  all  persons  are 
bound  to  the  exercise  of  reasonable  care  to  prevent  acci- 
dents. Such  care  must  be  in  proportion  to  the  danger  in 
each  case.  Where  one  undertakes  to  pass  another  on  the 
highway,  going  in  the  same  direction,  he  must  take  reason- 
able care  to  exercise  that  right  so  as  not  to  injure  another, 
and  would  be  liable  for  all  consequences  resulting  from 
negligence  on  his  part.  It  is  the  duty  of  a  person  operating 
an  automobile  *  *  *  upon  the  public  highway  to  use 
reasonable  care  in  its  operation,  to  move  it  at  a  rate  of  speed 
reasonable  under  the  circumstances,  and  cause  it  to  slow  up 
or  stop,  if  need  be,  when  danger  is  imminent,  and  could  by 
the  exercise  of  reasonable  care  be  seen  or  known  in  time 

Bartch,  120  Ind.  46,  22  N.  E.  Rep.  83.  16  Am.  St.  Rep.  317;  Lacey  v. 
Winn,  (Com.  PI.)  3  Pa.  Dist.  Rep.  811;  Lacey  v.  Winn,  (Com.  PI.)  4 
Pa.  Dist.  Rep.  409. 

A  bicycle  being  a  vehicle,  riding  one  in  the  usual  manner  on  a 
public  highway  is  not  unlawful.  Thompson  v.  Dodge,  58  Minn. 
555,  GO  N.  W.  Rep.  545.  28  L.  R.  A.  608. 

9.  That  the  automobile  is  a  ne^r  TeMcle  ia  immaterial. 
Chicago  V.  Banlier,  112  111.  App.  64. 


RIGHT  OF  AUTOMOBILES  TO  USE  HIGHWAYS,  ETC.       47 

to  avoid  accident.  There  is  a  like  duty  of  exercising  rea- 
sonable care  on  the  part  of  the  person  traveling  on  foot. 
The  person  having  the  management  of  the  automobile  and 
the  traveler  on  foot  are  required  to  use  such  reasonable 
care,  circumspection,  prudence  and  discretion  as  the  circum- 
stances require,  and  increase  of  care  being  required  where 
there  is  increase  of  danger.  Both  are  bound  to  the  reason- 
able use  of  all  their  senses  for  the  prevention  of  accident, 
and  the  exercise  of  all  such  reasonable  caution  as  ordinarily- 
careful  and  prudent  persons  would  exercise  under  like  cir- 
cumstances. The  more  dangerous  the  character  of  the  vehi- 
cle or  machine,  and  the  greater  its  liability  to  do  injury  to 
others,  the  greater  the  degree  of  care  and  caution  required 
in  its  use  and  operation."  ^° 


10.  Automobiles  may  use  highways. — The  use  of  automobiles  on 
a  highway  is  allowable.  If  ordinary  care  be  exercised  in  their  use. 
Fletcher  v.  Dixon,  68  Atl.  Rep.  875. 

"  With  respect  to  the  methods  of  travel  and  transportation  on  the 
highway,  as  in  all  other  spheres  of  action,  the  law  seeks  to  adapt 
itself  to  the  new  conditions  arising  from  the  progress  of  invention 
and  discovery.  The  ordinary  highway  is  open  to  all  suitable 
methods  of  use.     Towle  v.  Morse,  (Me.  1908),  68  Atl.  Rep.  1044. 

The  driver  of  a  horse  and  buggy  and  the  operator  of  an  auto- 
mobile have  equal  rights  in  the  use  of  the  streets,  and  each  must 
observe  reasonable  care  for  the  other's  safety,  determined  from  the 
extent  of  danger  incident  to  the  use  of  the  respective  vehicles,  and 
therefore  merely  running  an  automobile  into  a  street  while  horses 
are  driven  thereon  does  not  authorize  an  inference  of  negligence  of 
the  operator  of  the  automobile.  O'Donnell  v.  O'Neil,  109  S.  W. 
Rep.,  815. 

"An  owner  of  an  automobile  has  as  much  right  to  the  highway 
as  the  driver  of  a  horse  and  carriage.  If  a  horse  cannot  be  driven 
past  a  vehicle  or  car  properly  managed,  the  driver  should  keep  him 
off  the  highway  or  submit  to  the  consequences."  Per  J.  Weand,  in 
Silberman  v.  Huyette,  22  Montg.  Co.  L.  Rep.  (Pa.)  39. 

In  Iowa  the  right  to  use  an  automobile  on  the  highways  of  the 
state  is  expressly  conferred  by  Acts  30th.  Gen.  Assem.  c.  53  (Laws 
1904,  p.  44).    House  v.  Cramer,  112  N.  W.  Rep.  3. 


48  THE  LAW  OF  AUTOMOBILES. 

§  7-  Automobiles  have  no  superior  right  of  way. 

Although  automobiles  may  be  said  to  possess  an  equal 
right  to  use  the  public  highways  and  roads,  after  the  regis- 
tration and  licensing  requirements  have  been  complied  with, 
nevertheless  they  possess  no  superior  right  of  way  over 
other  vehicles. ^^ 

§  8.  Rights  on  ferries  and  vessels. 

While  dealing  with  the  right  of  automobiles  to  use 
the  public  highways,  it  is  of  interest  to  consider  the 
motor  vehicle's  right  on  ferries,  which  are  in  the  nature  of 
highways,  and  are  generally  a  continuation  thereof.  The 
Revised  Statutes  of  the  United  States  prohibiting  passen- 
ger steamers  to  carry  as  freigiit  certain  articles,  includ- 
ing petroleum  products  or  other  like  explosive  fluids, 
except  in  certain  cases  and  under  certain  conditions,  was 
amended  by  the  Act  of  Feb.  2i,  1901,  ch.  386,  31  Stat,  at 
L.  799.  U.  S.  Comp.  Stat.  1901,  p.  3050,  which  provided 
that :  "  Nothing  in  the  foregoing  or  following  sections  of 
the  act  shall  prohibit  the  transportation  by  steam  vessels  of 
gasolene  or  any  of  the  products  of  petroleum  when  carried 
by  motor  vehicles  (commonly  known  as  automobiles)  using 
the  same  as  a  source  of  motive  power :  Provided,  however, 
That  all  fire,  if  any,  in  such  vehicles  or  automobiles  be  ex- 
tinguished before  entering  the  said  vessel  and  the  same  be 
not  relighted  until  after  said  vehicle  shall  have  left  the 
same.  *  *  *  "  Under  this  statutory  provision  it  was  held 
that  gasolene  contained  in  the  tank  of  an  automobile  being 
transported  on  a  steam  vessel  was  carried  as  freight  within 
the  meaning  of  the  statute,  that  an  automobile  in  which  the 
motive  power  was  generated  by  passing  an  electric  spark 

11.   No    inperior    right    of    way. — Lorenz    v.    Tlsdale,  111  N.    Y. 
6upp.   173. 


RIGHT  OF  AUTOMOBILES  TO  USE  HIGHWAYS,  ETC.      49 

through  a  compressed  mixture  of  gasolene  and  air  in  the 
cylinder,  causing  intermittent  explosions,  carried  a  fire 
while  the  vehicle  was  under  motion  from  its  own  motive 
power ;  and  that  the  carrying  by  a  steam  ferryboat  of  such 
a  vehicle,  which  was  run  in  and  off  the  boat  under  its  own 
power,  was  a  violation  of  the  statute.^^ 

In  1905  Congress  amended  the  existing  law  by  enacting 
that  "  nothing  in  the  foregoing  or  following  sections  of  this 
act  shall  prohibit  the  transportation  by  steam  vessels  of 
gasolene  or  any  of  the  products  of  petroleum  when  carried 
by  motor  vehicles  (commonly  known  as  automobiles)  using 
the  same  as  a  source  of  motive  power:  Provided,  however, 
That  all  fire,  if  any,  in  such  vehicles  or  automobiles  be  ex- 
tinguished immediately  after  entering  the  said  vessel,  and 
the  same  be  not  relighted  until  immediately  before  said 
vehicle  shall  leave  the  vessel:  Provided  further,  That  any 
owner,  master,  agent,  or  other  person  having  charge  of 
passenger  steam  vessels  shall  have  the  right  to  refuse  to 
transport  automobile  vehicles,  the  tanks  of  which  contain 
gasolene,  naphtha,  or  other  dangerous  burning  fluids."  ^^ 

It  will  be  seen  that  Congress  has  relieved,  by  this  amend- 
ment, steam  vessels  from  the  penalty  which  they  were  sub- 
jected to  under  the  old  law  as  construed  by  the  decision  in 
The  Texas,  134  Fed.  Rep.  909;  however,  as  the  law  now 
stands,  "  any  owner,  master,  agent,  or  other  person  having 
charge  of  passenger  steam  vessels  shall  have  the  right  to 
refuse  to  transport  automobile  vehicles  "  carrying  gasolene, 
naphtha,  or  other  dangerous  burning  fluids. 

§  9.  Exclusion  of  automobiles  from  highways. 

Of  the  exclusion  of  automobiles  from  the  public  ways 
there  is  quite  a  little  to  be  said.     In  nearly  all  the  -States 

12.  Rights  on  ferries. — The  Texas,  134  Fed.  Rep.  909. 

13.  Congressional  legislation.— See  33  Stat,  at  L.,  part  2,  p.  720. 
4 


50  THE  LAW  OF  AUTOMOBILES. 

which  have  passed  automobile  legislation,  it  is  provided 
that  motor  vehicles  shall  not  be  operated  on  the  public 
avenues  of  travel  unless  the  statutory  provisions  have  been 
complied  with.  This  the  legislatures  undoubtedly  have  the 
authority  to  command.^"* 

The  Attorney-General's  department  of  Pennsylvania  on 
November  9,  1905,  rendered  an  opinion  in  which  it  is  stated 
that  no  motor  vehicle,  whether  automobile  or  bicycle  driven 
by  a  motor,  may  be  lawfully  driven,  ridden,  or  operated 
upon  the  streets  and  highways  of  the  state  after  the  first 
day  of  January,  1906,  unless  the  operator  thereof  shall 
have  first  obtained  from  the  state  highway  department  a 
license  for  that  purpose,  and  shall  have  further  complied 
with  all  of  the  regulations  and  requirements  imposed  by  the 
act.'^ 

There  is  also  very  little  doubt  of  the  law-making  body's 
power  to  set  apart  certain  places  or  roads,  free  from  motor 
carriage  travel,  w'here  a  reasonably  sound  necessity  exists 
for  the  exclusion  of  automobiles  from  such  places.  But 
there  can  be  no  unreasonable  discrimination  against  the 
motor  car  in  this  respect.  As  said  before,  it  has  an  equal 
right  to  use  the  highways.  Where  this  right  is  unlawfully 
withheld,  the  authorities  may  be  compelled  to  grant  the 
right  or  forced  to  desist  from  interfering  with  it.  Of 
course,  the  right  of  a  particular  party  may  be  forfeited  for 
a  time  if  provided  for  by  statute,  and  if  the  offending  party 
shows  that  he  is  not  as  an  operator  or  a  driver  fit  to  use 
the  highways.     In  connection  with  the  exclusion  of  auto- 


1  4.    state  may  regnlate  operation  of  antoxncbilei. — See  people 

V.  MacWilliams,  91  N.  Y.  App.  Div.  176.  84  N.  Y.  Supp.  357. 

15.   Reglstratioii    and    license    necessazr* — In    fe    Automobile 
Acts,  15  Pa.  Rep.  83. 


RIGHT  OF  AUTOMOBILES  TO  USE  HIGHWAYS,  ETC.      51 

mobiles  from  the  public  highways,  important  and  interest- 
ing cases  have  arisen  in  Calif ornia,^^  and  Massachusetts}"^ 
The  board  of  county  supervisors  of  Marin  county  framed 
an  ordinance  w^hich  provided  that  "  no  person  shall  run  an 


16.  California  decision. — Ex  parte  Berry,  (Cal.  1905)  82  Pac. 
Rep.  44. 

17.  Massachusetts  case.'— In  Com.  v.  Kingsbury,  85  N.  E.  848, 
the  Massachusetts  Supreme  Court  holds  that  the  regulation  of  the 
use  of  automobiles  on  particular  roads,  even  to  their  complete  ex- 
clusion therefrom,  is  within  the  police  power.  And  a  delegation  of 
the  power  to  make  such  regulations  to  boards  of  aldermen  and  se- 
lectmen is  not  improper. 

The  court  in  this  case  says: 

"  It  seems  too  plain  for  discussion  that,  with  a  view  to  the  safety 
of  the  public,  the  Legislature  may  pass  laws  regulating  the  speed  of 
such  machines  (automobiles)  when  running  upon  the  highways. 
The  same  principle  is  applicable  to  a  determination  by  the  Legis- 
lature that  there  are  some  streets  and  ways  on  which  such  machines 
should  not  be  allowed  at  all.  In  some  parts  of  the  State  where  there 
is  but  little  travel  public  necessity  and  convenience  have  required 
the  construction  of  ways  which  are  steep  and  narrow,  over  which 
it  might  be  difficult  to  run  an  automobile,  and  where  it  would  be 
very  dangerous  for  the  occupants  if  automobiles  were  used  upon 
them.  In  such  places  it  might  be  much  more  dangerous  for  travelers 
with  horses  and  with  vehicles  of  other  kinds  if  automobiles  were 
allowed  there. 

"  No  one  has  a  right  to  use  the  public  streets  and  public  places  as 
he  chooses,  without  regard  to  the  safety  of  other  persons  who  are 
rightly  there. 

"  In  choosing  his  vehicle,  everyone  must  consider  whether  it  is 
of  a  kind  which  will  put  in  peril  those  using  the  streets  differently 
in  a  reasonable  way. 

"  In  parks  and  cemeteries  and  private  grounds,  where  narrow  roads 
with  precipitous  banks  are  sometimes  constructed  for  carriages 
drawn  by  horses,  it  has  been  a  common  practice  to  exclude  auto- 
mobiles altogether,  chiefly  because  of  the  danger  of  their  frighten- 
ing horses. 

"  The  right  of  the  Legislature,  acting  under  the  police  power,  to 
prescribe  that  automobiles  shall  not  pass  over  certain  streets  as 
public  ways  in  a  city  or  town,  seems  to  us  well  established  both 
upon  principle  and  authority." 


52  THE  LAW  OF  AUTOMOBILES. 

automobile  on  any  *  *  *  highways  of  Marin  county  be- 
tween the  hours  of  sunset  of  any  day  and  of  sunrise  on  the 
day  following."  A  violation  of  the  law  was  made  punish- 
able by  a  fine  or  imprisonment.  A  motorist  was  convicted 
of  a  violation  of  this  regulation  rnd  was  sent  to  jail. 
Habeas  corpus  proceedings  were  brought  to  regain  the 
prisoner's  liberty,  claiming  that  the  ordinance  of  the  county 
commissioners  prohibiting  the  operation  of  motor  cars  at 
night  was  unreasonable,  and.  therefore,  his  imprisonment 
was  illegal.  The  Supreme  Court  of  California,  however, 
decided  that  the  ordinance  constituted  a  reasonable  and 
valid  regulation  within  the  power  of  the  commissioners  to 
make.  This  regulation  and  decision  prohibits  the  motorist 
from  returning  home  in  his  car  at  night  if  he  should  happen 
to  get  temporarily  stuck  in  the  country  road  mud.  It  is 
interesting  to  note  what  the  court  said  in  this  case.  The 
justice  writing  the  opinion  states  (using  his  exact  lan- 
guage) :  "If  the  use  of  automobiles  gradually  becomes 
more  common,  there  may  come  a  time  when  an  ordinance 
like  the  one  in  question  would  be  unreasonable.  As  country 
horses  are  frequently  driven  into  cities  and  towns,  many  of 
them  will  gradually  become  accustomed  to  the  sight  of 
automobiles,  and  the  danger  of  their  use  on  country  roads 
will  grow  less."  Prohibiting  the  use  of  country  roads  at 
night  would  seem  to  be  exercising  the  right  to  regulate 
motoring  to  its  limit,  and  possibly  beyond  lawful  regu- 
latory power,  especially  in  view  of  the  fact  that  horses  have 
no  superior  right  on  the  road.  Such  a  regulation  comes 
very  near  amounting  to  prohibition.  The  frightening  of 
horses,  beyond  doubt,  is  an  incident  to  the  lawful  use  of 
the  public  highways,  and  does  not  of  itself  constitute  a 
wrong  per  se  upon  which  alone  legal  liability  may  be  based. 
In  a  case  decided  in  1902  by  the  Supreme  Court  of  Errors 


RIGHT  OF  AUTOMOBILES  TO  USE  HIGHWAYS,  ETC.      53 

of  Connecticut,^^  it  was  held  that  the  fright  and  shying  of 
a  gentle  horse  at  the  passing  of  an  automobile,  driven  with 
ordinary  care  and  at  a  reasonable  speed,  was  an  event  in- 
cident to  the  proper  use  of  the  highway.  The  facts  of  this 
case  were  as  follows :  While  meeting  and  passing  an  auto- 
mobile a  gentle  horse,  which  was  being  driven  with  due 
care,  became  frightened,  shied,  veering  sharply  to  the  right, 
and  being  within  a  few  feet  of  the  right  side  of  the  road, 
plunged  down  a  declivity  of  some  three  or  four  feet  to  the 
adjoining  land,  ran  a  distance  of  some  fifty  feet  and  then, 
taking  another  turn,  overturned  the  carriage,  injuring  an 
occupant.  The  automobile  was  being  driven  at  the  time 
with  ordinary  care  and  at  a  reasonable  speed.  It  was 
claimed  that  the  automobile  was  the  proximate  cause  of 
the  injury  and  not  the  failure  of  the  town  authorities  to 
protect  the  bank  of  the  road.  The  town  was  held  to  be 
liable  for  the  injuries  caused  by  its  failure  to  make  the 
highway  reasonably  safe  for  travel.  The  defect  in  the 
highway  was  the  lack  of  a  sufficient  railing  or  fence  on  the 
side  of  the  road.  In  contrast  to  the  severity  of  the  Cali- 
fornia decision  above  mentioned,  it  is  interesting  to  note 
an  important  case  decided  by  the  Appellate  Court  of 
Illinois.^^ 

In  this  case  it  was  held  that  as  a  prerequisite  to  one 
operating  his  automobile  for  pleasure  on  the  public  ways, 
the  city  of  Chicago  had  no  power  to  require  a  party  who 
uses  his  automobile  for  his  private  business  and  pleasure 
only,  to  submit  to  an  examination  and  to  take  out  a  license, 
for  such  is  imposing  a  burden  upon  one  class  of  citizens  in 
the  use  of  the  streets  which  is  not  imposed  upon  others, 
and  such  an  ordinance  was  beyond  the  power  of  the  city 

18.  Connecticut   case. — Upton   V.   Windham,   75   Conn,   288,   dis- 
tinguishing and  affirming  Britian  v.  Sharon,  71  Conn.  686. 

19.  Illinois  decision. — Chicago  v.  Banker,  112  111.  App.  94. 


54  THE  LAW  OF  AUTOMOBILES. 

counsel,  and  was,  therefore,  void.  A  turnpike  company 
had  an  undoubted  right,  in  the  exercise  of  a  sound  discre- 
tion, to  prevent  such  use  of  its  road  as  would  make  it  dan- 
gerous to  the  general  public.  The  managers  of  highways 
owned  by  private  corporations  have  an  undoubted  right, 
in  the  exercise  of  a  sound  discretion,  to  prevent  such  use 
of  the  highway  as  will  make  it  dangerous.  Unless  for- 
bidden by  legislative  enactment,  as  is  sometimes  done  in  the 
case  of  bicycles,  they  may  exclude  from  their  highways  a 
carriage  or  vehicle,  the  use  of  which  is  dangerous,  where 
the  safety  of  the  general  public  demands  such  exclusion.^" 

§  10.  Tolls. 

A  judicial  decision  of  much  importance  to  automobilists, 
handed  down  by  the  Supreme  Court  of  New  York,  held 
that  a  certain  toll  bridge  company  possessed  no  legal  right 
to  charge  tolls  for  automobiles.  The  charter  of  this  com- 
pany enumerated  specifically  the  classes  of  vehicles  for  the 
passage  of  which  tolls  could  be  collected ;  it  made  no  men- 
tion of  automobiles. 

The  importance  of  this  decision  is  due  to  the  fact  that 
there  are  many  other  toll  bridges  throughout  the  United 
States  which  possess  similar  charters,  and  must  therefore 
permit  automobiles  to  pass  over  their  bridges  toll  free. 
However,  if  the  charter  of  such  a  corporation  expressly 
authorizes  the  company  to  charge  tolls  for  certain  classes 
of  vehicles  mentioned,  and  in  enumerating  the  list  uses  the 
phrase  "  any  other  vehicle,"  then  the  automobile  might  be 
held  to  pay  toll. 

20.   Exclusion  from  turnpike. — Berties  v.  The  Laurel  Run  Turn- 
pike Co..  15  Pa.  Dist.  Rep.  94. 
Automobile  may  use  turnpike  upon  pacing  reasonable  toll. 

— Scranton  v.  Laurel  Run  Turnpike  Co.,   14  Luz.   Leg.  Rep.    (Pa.) 
97. 


RIGHT  OF  AUTOMOBILES  TO  USE  HIGHWAYS,  ETC.      55 

The  principle  of  law  governing  the  subject  of  exacting 
automobile  tolls  is  that  a  corporation  which  is  given  valu- 
able privileges  from  the  State  possesses  only  those  powers 
which  are  expressly  granted  or  conferred  by  necessary  im- 
plication from  the  charter  provisions.  Justice  Spencer,  of 
the  New  York  Supreme  Court,  in  making  the  decision  here 
referred  to,  says : 

"  The  company's  right  to  exact  tolls  is  confined  to  the 
animals  and  vehicles  specified  in  the  act  conferring  the  fran- 
chise. All  other  animals  and  vehicles  must  be  presumed 
to  have  the  right  to  cross  free.  The  fact  that  automobiles 
were  not  known  at  the  time  of  the  passage  of  the  act  makes 
no  difference,  for  the  reason  that  defendants,  by  accepting 
the  franchise  in  consideration  for  the  right  to  collect  the 
tolls  stipulated  for,  assumed  the  duty  and  responsibility  of 
building  and  maintaining  a  bridge  that  would  meet  the 
reasonable  requirements  of  all  travelers  on  the  public  high- 
way, including  vehicles  and  animals  then  in  common  use 
by  travelers,  and  also  such  as  might  thereafter  come  into 
common  use.  Its  power  to  collect  toll  is  derived  from  the 
provisions  of  the  franchise.  It  stipulated  for  no  other  or 
further  right,  and  may  not  exact  toll  except  as  therein  pro- 
vided. If  it  deems  it  necessary  to  require  payment  of  tolls 
from  others  it  must  apply  to  the  Legislature  for  authority 
so  to  do.    Its  power  must  be  strictly  construed." 

The  amount  of  tolls  exacted  from  automobilists  by  toll 
bridges  and  toll  roads  figures  up  to  thousands  of  dollars. 
As  a  general  rule  the  charge  for  the  passage  of  a  motor 
vehicle  is  much  higher  than  the  charge  for  other  carriages. 
There  is  no  reason  for  this  increased  price  for  the  passage 
of  automobiles,  except  the  fact  that  ordinarily  the  motorist 
can  afford  to  pay  it.^^ 

21.  Toll  bridges. — Mallory  v.  Saratoga  Lake  Bridge  Co.,  104  N.  Y. 
Supp.  1025,  53  Misc.  Rep.  446. 


56  THE  LAW  OF  AUTOMOBILES. 

As  to  the  exclusion  of  non-resident  motorists  from  the 
public  ways,  there  is  no  authority  or  power  in  the  State  to 
do  this,  on  the  ground  of  nonresidence,  and  the  States  have 
no  power  to  place  greater  restrictions  or  burdens  on  non- 
resident automobilists  than  those  imposed  on  their  own 
citizens.  Such  action  on  the  part  of  a  State  would  violate 
the  Federal  Constitution.  However,  the  State  may  compel 
nonresidents  to  comply  with  the  regulations  controlling 
residents.  No  discrimination  is  created  in  such  a  case,  as 
all  are  treated  alike. 

§  11.  Compelling  privilege  of  using  road— Pleading. 

A  petition  for  a  writ  of  mandamus  commanding  a  turn- 
pike company  to  allow  the  petitioner,  while  operating  and 
using  his  automobile,  the  right  and  privilege  of  passing 
over  and  upon  its  turnpike  road,  upon  his  paying  the  tolls 
established  by  law  for  the  passage  of  vehicles  of  similar 
weight  and  width  of  tires  over  turnpike  roads  of  the  com- 
monwealth of  Pennsylvania,  must  aver  that  the  petitioner 
has  complied  witli  all  the  requirements  of  the  provisions 
of  the  State  Automobile  Act.^^ 

New  York  statute. — Since  the  above  decision  the  Legislature  of 
"Sew  York  passed  an  enabling  act  allowing  toll  bridges  to  charge 
reasonable  tolls  for  automobiles,  but  no  more  than  is  charged  for 
other  vehicles.     See  L.  1907,  Ch.  127. 

Assault  on  toll  gate  keeper. — Evidence,  although  contradicted, 
that  the  defendants  approached  a  toll  gate  in  an  automobile,  and 
when  toll  was  demanded  choked  the  keeper,  rushed  their  machine 
through  the  gate  and  injured  the  keeper's  wife,  and  that  they  had 
previously  driven  through  a  number  of  toll  gates  at  a  high  rate  of 
speed  without  paying  toll,  is  sufficient  to  warrant  a  verdict  of 
guilty  of  assault.  In  such  a  case  a  demand  by  the  keeper  for  a 
higher  rate  of  toll  than  was  legal  did  not  justify  the  assault. — Com. 
v.  Rider,  29  Pa.  SuiK-r.  Ct..  621. 

22.  Mandamus. — Bertles  v.  The  Laurel  Run  Turnpike  Co.,  15  Pa. 
Dist.  Rep.  94. 


CHAPTER  V. 

REGISTRATION  AND  LICENSING. 

Sec.  1.  General  considerations. 

2.  Registration  systems. 

3.  Registration  by  corporations  and  partnerships. 

4.  Traction  engines. 

5.  Status  of  unlicensed  automobilist. 

6.  Age  limit. 

7.  Purpose  of  registration. 

8.  Power  to  require  registration  and  license. 

9.  Constitutional  law. 

10.  Licenses. 

11.  Operation  and  effect  of  license. 

12.  Exemption  of  nonresidents. 

13.  Exemption  based  upon  reciprocity. 

§  1.  General  considerations. 

In  many  of  the  States  there  have  been  passed  statutes 
requiring  the  registration  of  automobiles  or  owners,  manu- 
facturers and  chauffeurs.  In  some  jurisdictions  only  the 
machine  is  required  to  be  registered,  in  others  the  operator 
and  in  others  the  owner.  Some  of  the  States,  like  New 
York,  in  the  law  of  1904,  require  registration  by  owners, 
manufacturers,  and  chauffeurs. 

The  statutes  providing  for  registration  generally  enact 
that  the  party  to  register  must  file  a  statement  containing 
his  name,  address,  and  a  description  of  the  machine,  which 
statement  is  to  be  filed  with  the  secretary  of  state  or  some 
other  officer,  who,  upon  receipt  of  the  statement  and  a 
prescribed  fee,  makes  a  record  of  the  application,  where- 
upon the  officer  issues  to  the  applicant  a  number  which  cor- 
es?] 


58  THE  LAW  OF  AUTOMOBILES. 

responds  with  the  number  against  his  name  as  recorded. 
The  precise  statutory  provisions  of  the  various  states  are 
ascertainable  by  writing  to  the  secretary  of  state  or  other 
officer  having  charge  of  registrations.  Blanks  will  be  fur- 
nished upon  request.  The  number  assigned  is  generally 
required  to  be  displayed  on  the  machine  in  a  conspicuous 
place. ^ 

Usually  number  tags  or  plates  are  carried  on  both  the 
rear  and  front  of  the  automobile,  however,  in  a  number  of 
jurisdictions  the  displayment  of  the  number  is  only  neces- 
sary on  the  back  of  the  motor  vehicle.  Some  of  the  States 
require  the  number  plate  to  be  fixed  and  to  be  placed  a 
certain  distance  from  the  ground.  It  is  also  a  common 
requirement  that  the  number  must  be  kept  free  from 
obliteration.  In  certain  states  where  registrations  are 
annual,  the  number  plates  are  furnished  by  the  State  and 
each  year  a  different  colored  number  plate  is  used  as  ha^ 
been  the  custom  and  practice  in  Pcnnsyh'ania.  This 
affords  an  easy  method  of  detecting  those  who  have  failed 
to  register,  however,  reasonable  opportunity  to  obtain  new 
plates  should  be  given  from  year  to  year. 

§  2.  Registration  systems. 

Every  State  in  the  United  States  and  every  foreign 
country  which  has  sought  to  regulate  the  operation  of  auto- 
mobiles on  the  public  thoroughfares  has  compelled  by  law 
registration  with  a  certain  official,  and  in  many  of  the 
States  and   foreign  jurisdictions  chauffeurs  especially  are 


1.  Indictment. — Where  a  statute  provides  that  every  person  "  de- 
Biring  "  to  operate  an  automobile  must  obtain  a  license  from  certain 
officers,  an  indictment  Is  not  bad  because  of  the  omission  of  the  word 
"  desire."  the  indictment  otherwise  substantially  following  the  lan- 
guage of  the  statute.  State  v.  Cobb,  (Mo.  App.  1905)  87  S.  W.  Rep. 
651. 


REGISTRATION  AND  LICENSING.  59 

required  to  register.  Although  each  State  and  foreign 
country  has  estabhshed  a  registration  system,  there  is,  how- 
ever, considerable  difference  in  the  systems  adopted.  Why 
there  should  be  this  difference  cannot  perhaps  be  explained. 
The  general  conditions  in  all  the  jurisdictions,  both  State 
and  foreign,  are  much  the  same.  The  same  kinds  of  auto- 
mobiles are  also  used. 

There  are  in  existence  two  general  systems  of  registra- 
tion, viz.:  First,  registration  of  automobiles  by  owners; 
second,  registration  of  all  drivers.  It  certainly  seems  some- 
what inconsistent  for  the  State  of  New  York,  for  example, 
to  require  the  machines  themselves  to  be  registered,  and 
upon  crossing  over  the  border  into  Pennsylvania  we  find 
the  law  totally  ignoring  the  vehicle,  but  specifically  requir- 
ing drivers  or  operators  to  register.  In  that  State  the 
Highway  Department  issues  the  licenses  and  number  plates 
to  drivers.  The  driver  must  hang  his  personal  number  on 
the  front  and  back  of  whatever  car  he  happens  to  be 
driving,  no  matter  whether  he  is  an  owner,  chauffeur, 
lessee  or  borrower  of  the  machine.  It  will  be  seen  that  in 
New  York  a  record  is  kept  of  machines,  while  in  Penn- 
sylvania the  names  of  the  drivers  are  recorded.  The 
English  act  is  similar  to  the  New  York  law  in  this  respect, 
but  drivers  must  also  register  and  be  licensed.  The  pur- 
pose of  the  automobile  registration  systems  is  to  afford  a 
means  of  identifying  the  automobilist  if  for  any  lawful 
reason  his  identity  is  desired  to  be  ascertained.  The  theory 
is  that  from  the  number  the  name  of  an  offending  auto- 
mobilist may  be  ascertained  from  the  officer  keeping  the 
record. 

Is  a  system  requiring  the  registration  of  automobiles  by 
owners  more  conducive  to  correct  identification  than  a 
system  requiring  the  registration  of  all  drivers? 


go  THE  LAW  OF  AUTOMOBILES. 

This  is  an  important  question.  It  may  be  that  neither 
system  is  of  much  practical  use  considering  the  promiscuous 
way  number  plates  are  loaned  and  exchanged,  but  consider- 
ing the  question  in  connection  with  accurate  identification, 
assuming  that  there  is  no  misuse  of  numbers,  it  certainly 
must  be  conceded  that  the  system  which  registers  all 
drivers,  more  directly  tends  to  afford  a  quick  means  of 
identifying  the  person  wanted.  To  register  the  machine  by 
the  owner  does  no  more  than  identify  the  automobile.  Of 
course,  the  name  of  the  owner  may  be  ascertained,  but  it 
would  not  be  as  easy  to  discover  the  name  of  a  person  other 
than  the  owner  who  may  be  the  real  party  wanted ;  at  least, 
this  method  of  identification  is  more  indirect  and  subject 
to  failure.  It  is  a  recognized  fact  that  the  registration 
systems  which  place  automobiles  only  on  record  have 
proven  to  be  of  little  use  in  finding  the  real  culprit  who 
speeds  away  leaving  nothing  behind  but  his  victim  and 
seldom  a  record  of  his  car. 

§  3.  Registration  by  corporations  and  partnerships. 

Under  the  New  Hampshire  automobile  law  which  re- 
quires all  automobiles  and  motor  cycles  to  be  registered  by 
the  owner  or  person  in  control,  and  prohibiting  any  person 
to  operate  such  a  vehicle  until  he  shall  first  have  ob- 
tained a  license,  which  he  must  keep  with  him  when  operat- 
ing the  machine,  a  corporation  or  partnership  owning 
a  vehicle  covered  by  the  statute,  according  to  a  recent  de- 
cision of  the  Supreme  Court  of  New  Hampshire,  must 
register  the  automobile  in  the  corporate  or  firm  name,  but 
the  license  is  not  to  be  issued  to  the  corporation  or  firm  as 
such,  it  being  personal  to  the  operator.^ 

2.  Corporations  and  partnerships. — Emerson  Troy  Granite  Co. 
V.  Pearson,  04  All.  Rep.  582. 


REGISTRATION  AND  LICENSING.  61 

§  4.  Traction  engines. 

The  law  of  the  State  of  New  Hampshire  which  requires 
the  Hcensing  of  operators  of  automobiles,  and  defining 
automobiles  as  all  vehicles  propelled  by  other  than  muscular 
power,  except  railroads  and  railway  cars,  and  motor 
vehicles  running  only  upon  rails  or  tracks,  and  road  rollers, 
has  been  held  by  the  Supreme  Court  of  New  Hampshire  to 
include  a  road  locomotive  or  traction  engine  used  to  draw 
cars.^ 

§  5-  Status  of  unlicensed  automotilist. 

Though,  under  the  Massachusetts  law  declaring  that  no 
person,  except  as  therein  provided,  shall  operate  an  auto- 
mobile upon  a  public  highway  unless  licensed  so  to  do,  and 
unless  the  automobile  is  registered  under  the  act,  a  person 
without  a  license  so  operating  an  unregistered  automobile 
would  not  be  a  traveler,  except  as  a  violator  of  the  law,  and 
could  not  recover  from  the  town  for  a  defect  in  the  road, 
yet  proof  that  a  person  is  so  licensed  and  that  his  automo- 
bile is  registered  is  not  a  condition  precedent  to  his  recovery 
for  damages  caused  by  a  defect  in  a  road,  but  is  matter  of 
defense,  since  presumptions  both  of  law  and  fact  are  in 
favor  of  innocence,  and  where  one  would  avoid  liability 
on  the  ground  of  a  violation  of  law  by  the  plaintiff,  he 
must  prove  the  violation.^ 
§  6.  Age  limit. 

The  relation  of  the  age  of  automobile  drivers  to  the 
safety  of  the  public  has  been  a  subject  for  legislative 
action  in  some  of  the  States.  The  proper  age  limit 
for  automobile  drivers  is  a  question  which  admits  of 
much  argument.     Obviously  there  should  be  some  limit, 

3.  Traction  engines. — Emerson  Troy  Granite  Co.  v.  Pearson,  64 
Atl.  Rep.  582. 

4.  Unlicensed    antomobilist.  — Doherty  v.  Town  of  Ayer,  83  N. 
E.  Rep.  677. 


62 


THE  LAW  OF  AUTOMOBILES. 


but  whether  it  can  be  fixed  arbitrarily,  irrespective  of  the 
intelligence  of  the  person,  is  a  serious  problem.  In  law,  a 
person  under  the  age  of  twenty-one  is  deemed  incapable  of 
performing  many  acts  which  are  mainly  of  a  contractual 
nature.  Those  who  are  under  that  age  are  temied  "  in- 
fants "  and  are  not  entitled  to  act  sui  juris  until  the  twenty- 
first  year  has  arrived.  Infants  have  always  been  treated 
as  "  incompetent  "  and  classed  with  persons  non  compos 
mentis;  in  the  early  history  of  our  jurisprudence  they  were 
placed  in  the  same  category  with  married  women,  who 
practically  had  no  distinct  rights.  But  it  will  be  found  that 
the  persons  who  were  deemed  non  sui  juris  were  consid- 
ered more  particularly  incompetent  to  enter  into  relations 
of  a  contractual  nature.  The  law  says  that  an  infant's 
contract  shall  not  be  binding  upon  him,  but  will  hold  the 
other  party.  This  is  for  the  infant's  protection  only. 
He,  and  he  alone,  can  repudiate  his  obligation.  The  other 
party  cannot.  This  doctrine  has  a  bearing  upon  the  right 
to  declare  a  person  under  a  certain  age  incompetent  to  run 
a  power  vehicle  on  the  public  thoroughfares.  We  must 
not  labor  under  the  delusion  that  an  infant  is  not  liable  for 
civil  wrongs  such  as  torts,  for  he  is  so  liable.  He  is  also 
liable  criminally  for  violating  the  criminal  laws,  but  under 
the  age  of  seven  the  common  law  presumes  him  incapable 
of  crime.  From  seven  years  to  fourteen  he  is  presumed 
incapable  of  crime,  but  the  presumption  is  only  prima  facie, 
and  may  be  rebutted.  From  fourteen  years  and  over  he  is 
liable  criminally  just  the  same  as  any  adult. 

The  status  of  the  infant  has  been  thus  defined  in  order 
that  it  might  be  understood  in  considering  his  just  rights 
in  respect  to  using  the  public  highways. 

Manifestly  a  boy  from  five  to  twelve  years  old  and  even 
older  should  not  be  allowed  to  drive  an  automobile  in  the 
streets.     But  where  should  the  line  be  drawn?     Does  the 


REGISTRATION  AND  LICENSING.  63 

safety  of  the  public  demand  that  all  automobile  drivers 
should  be  at  least  twenty  years  old,  regardless  of  excep- 
tional intelligence?  We  want  to  protect  the  users  of  our 
highways  from  danger,  but  at  the  same  time  proper  persons 
should  not  be  excluded  from  using  the  avenues  of  travel. 
The  age  limit  of  twenty  years  seems  too  high  and  fixes  an 
unjust  arbitrary  standard.  It  absolutely  debars  all  persons 
under  that  age  from  using  automobiles  as  their  own  drivers. 
And  it  may  be  asked,  does  the  age  limit  of  twenty  years 
have  any  logical  relation  to  the  protection  of  the  public,  any 
more  so  than  the  age  limit  of  eighteen  years,  as  now  pro- 
vided in  New  Jersey?  A  better  way  or  method  would  be 
to  provide  that  all  persons  under  a  certain  age,  say  sixteen 
years,  are  prohibited  absolutely  to  drive  automobiles,  and 
all  over  sixteen  years  of  age  and  under  eighteen  for  ex- 
ample, are  presumed  incompetent  until  satisfactory  proof 
has  been  presented  to  the  licensing  authorities.  After  all, 
it  is  a  question  of  intelligence  and  discretion  and  not  one  of 
age. 

Tags  permitted  in  Pennsylvania.— All  tags  bearing 
licensed  numbers,  with  the  exception  of  the  two  furnished 
by  the  State  highway  department  under  the  Pennsylvania 
Act  of  April  19,  1905,  P.  L.  217,  must  be  removed  from 
automobiles  while  being  operated  within  the  limits  of  the 
commonwealth.^  The  Pennsylvania  Act  of  April  19,  1905, 
P.  L.  217,  regulating  the  licensing,  operating,  etc.,  of  motor 
vehicles,  providing  inter  alia  that  not  more  than  one  state 
license  number  shall  be  carried  upon  the  front  or  back  of 
the  vehicle,  and  that  a  "  license  number  obtained  in  any 
other  place  or  state  shall  be  removed  from  said  vehicle 
while  the  vehicle  is  being  used  within  this  commonwealth," 


5.  Tags  in  FenmsylTania.  — In  re  Automobile  Acts,  15  Pa.  Dist. 
Rep.  83. 


64 


THE  LAW  OF  AUTOMOBILES. 


was  held  not  to  conflict  with  nor  supersede  the  ordinance 
of  December  26,  1902,  of  the  city  of  Philadelphia,  which 
also  provides  for  the  licensing,  regulation,  and  operation  of 
motor  vehicles  within  that  municipality.  Both  the  act  and 
the  ordinance  were  held  to  stand  together,  and,  for  motor 
vehicles  operated  within  the  said  city,  both  state  and  city 
licenses  must  be  obtained  and  both  license  tags  displayed, 
a  municipality  not  being  within  the  meaning  of  the  word 
"  place  "  as  used  in  the  act.  It  was  also  held  that  the  speed 
regulations  of  the  said  ordinance  must  also  be  obeyed.® 

§  7.  Purpose  of  registration. 

The  reason  assigned  for  the  necessity  of  registration  and 
licensing  is  that  the  vehicle  should  be  readily  identified  in 
order  to  debar  operators  from  violating  the  law  and  the 
rights  of  others,  and  to  enforce  the  laws  regulating  the 
speed,  and  to  hold  the  operator  responsible  in  cases  of  acci- 
dent. The  legislatures  have  deemed  that  the  best  method 
of  identification,  both  as  to  the  vehicle  and  the  owner  or 
operator,  is  by  a  number  on  a  tag  conspicuously  attached  to 
the  vehicle.  In  case  of  any  violation  of  law  this  furnishes 
means  of  identification,  for.  from  the  number,  the  name  of 
the  owner  may  be  readily  ascertained  and  through  him  the 
operator.^ 

It  is  not  difficult  to  see  that  the  registration  and  number- 
ing of  automobiles  is  intimately  connected  with  their  safe 
operation  in  the  state.  Many  automobiles  are  precisely 
alike  in  external  appearance.  They  are  sometimes  operated 
by  those  whose  faces  are  partially  concealed  and  whose 


6.  State  and  municipal  regnlatioms.  —Brazier  v.  Philadelphia, 
15  Pa.  Dist.  Rep.  14. 

7.  Purpose  of  regiatration.— See  People  v.  MacWilliams,  91  N. 
Y.  App.  Div.  17C.  80  N.  Y.  Supp.  357;  People  v.  Schneider,  (Mich. 
1905)   103  N.  W.  Rep.  172,  12  Det.  L.  N.  32,  69  L.  R.  A.  345. 


REGISTRATION  AND  LICENSING.  65 

identity  is  uncertain.  Those  operators  who  are  most  reck- 
less and  indifferent — and  those  are  the  ones  that  endanger 
the  safety  of  others — may  violate  the  law  with  impunity 
unless  some  method  is  adopted  by  which  they  or  their  auto- 
mobiles may  be  identified.  A  provision  in  a  law  for  regis- 
tration and  numbering  is  such  a  method.  It  is  reasonable 
to  believe  that,  when  he  knows  that  the  number  displayed 
on  the  automobile  identifies  the  vehicle,  fear  of  discovery 
and  punishment  will  lead  the  automobile  driver  to  observe 
the  requirements  of  the  law.^ 

§  8.  Power  to  require  registration  and  license. 

As  has  been  shown  requiring  automobiles  or  the 
operators  to  be  registered  is  a  mere  statutory  requirement 
and  an  effective  precaution  against  reckless  motoring.  Since 
the  statutory  measures  are  directed  against  careless  driving 
it  would  seem  that  only  the  operator,  whether  he  is  the 
owner  or  a  chauffeur,  should  be  compelled  to  register,  as  is 
now  the  case  in  many  of  the  states.  Undoubtedly  the  state 
or  a  duly  authorized  municipality  has  the  power  to  enact 
laws  on  this  matter  requiring  registration  and  the  payment 
of  a  fee.^ 

8.  Identification. — See  People  v.  Schneider,  (Mich.  1905)  103 
N.  W.  Rep.  172,  12  Det.  L.  N.  32,  69  L.  R.  A.  345. 

9.  Po-wer  to  require  registration.  — Com.  v.  Boyd,  188  Mass. 
79,  74  N.  E.  Rep.  255;  People  v.  Schneider,  (Mich.  1905)  103  N.  W. 
Rep.  172,  12  Det.  L.  N.  32,  69  L.  R.  A.  345;  Com.  v.  Hawkins,  14 
Pa.  Dist.  Rep.  592.  See  also  People  v.  MacWilliams,  91  N.  Y.  App. 
Div.  176,  86  N.  Y.  Supp.  357.  But  see  Chicago  v.  Banker,  112  111. 
App.   94. 

The  provision  of  the  Pennsylvania  Act  of  1903,  requiring  the  regis- 
tration of  automobiles  is  a  valid  exercise  of  the  police  powers.  Com. 
V.  Densmore,  29  Pa.  Co.  Ct.  217. 

In  Com.  V.  Hawkins,  14  Pa.  Dist.  Rep.  592,  the  court  upheld  the 
validity  of  an  ordinance  (passed  by  the  city  of  Pittsburg  under  the 
power  conferred  by  the  special  Act  of  April  1,  1868  [P,  L,  565,  sec. 
5 


eg  THE  LAW  OF  AUTOMOBILES. 

However,  there  is  one  case  decided  in  this  country  which 
goes  very  far  in  denying  the  right  of  a  municipahty  to 
require  the  registration  of  automobiles  and  the  payment 
of  a  Hcense  fee.  That  case  is  Chicago  v.  Banker,  112  111. 
App.  94,  wherein  it  was  held  that  an  ordinance  of  the  City 
of  Chicago  which  required  one  who  uses  his  automobile 
for  his  private  business  and  pleasure  only  to  submit  to  an 
examination  and  to  be  licensed  as  an  "automobile  opera- 
tor "  (if  the  examining  board  see  fit  to  grant  him  a  license) 
imposes  a  burden  upon  one  class  of  citizens  in  the  use  of 
the  streets  not  imposed  upon  others,  and  is,  therefore,  void. 
In  this  case,  the  court  declared  that,  conceding  that  what 
is  fairly  implied  is  as  much  granted  as  what  is  expressed, 
nevertheless  the  charter  of  a  municipal  corporation  is  the 


71,]  to  regulate  and  license  every  description  of  carriages)  which 
makes  it  unlawful  for  any  person  to  operate,  or  cause  to  be  operated, 
upon  the  streets  of  the  city,  an  automobile,  motor  vehicle,  or  other 
conveyance  or  wagon,  the  motive  power  of  which  shall  be  elec- 
tricity, steam,  gasolene,  or  any  source  of  energy  other  than  human 
and  animal  power,  except  upon  the  conditions,  inter  alia,  of  the  pay- 
ment by  the  owner  of  an  annual  license  fee  of  six  dollars  if  the 
vehicle  is  intended  to  carry  one  or  two  persons,  and  a  fee  of  ten  dol- 
lars if  intended  to  carry  more  than  two  persons.  The  court  said  that 
the  license  imposed  was  not  unreasonable,  and  was  uniform  upon 
different  kinds  of  the  several  classes  of  vehicles  named;  and  that 
that  was  all  the  law  required  in  that  respect. 

The  power  conferred  upon  the  city  of  Pittsburg,  Pennsylvania,  by 
the  special  Act  of  April  1,  1868  [P.  L.  565],  to  impose  a  license  upon 
automobiles  used  in  the  city  streets,  was  not  repealed  by  the  Act  of 
April  23,  1903  [P.  L.  268],  regulating  the  use  of  automobiles  through- 
out the  state  as  the  later  act  contains  no  repealing  clause,  and  by 
the  provision  of  the  7th  section,  to  the  effect  that  the  amount  of 
license  prescribed  by  the  act  shall  not  apply  to  any  city  or  other 
municipality  in  which  the  authorities  have  imposed  a  license  fee 
for  the  same  purpose,  indicates  an  intention  to  presence  to  the 
municipalities  any  authority  previously  conferred  upon  them  au- 
thorizing the  licensing  of  vehicles.  Com.  v.  Hawkins,  14  Pa.  Dist. 
Rep.  592. 


REGISTRATION  AND  LICENSING.  67 

measure  of  its  powers,  and  the  enumeration  of  those  powers 
imphes  the  exclusion  of  all  others.  Among  other  powers 
enumerated  in  the  charter  of  the  city  is  that  of  regulating 
the  use  of  the  streets  and  the  speed  of  vehicles  within  the 
limits  of  the  corporation,  and  also  the  power  to  license  and 
regulate  certain  occupations.  The  opinion  is  this  case  pur- 
ports to  put  the  decision  upon  the  usual  ground  that  the 
ordinance  wrongfully  discriminates  between  different 
classes  of  citizens.  The  actual  decision,  however,  was  upon 
the  ground  that  the  charter  did  not  confer  requisite  power 
upon  the  city  council  to  enact  the  ordinance.^** 

Such  legislation  is  an  exercise  of  the  police  powers  of 
the  state  or  municipality.  In  Com.  v.  Boyd,  i88  Mass.  79, 
74  N.  E.  Rep.  255,  the  Supreme  Judicial  Court  of  Massa- 
chusetts held  that  the  Massachusetts  statute  was  not  un- 
constitutional which  required  automobiles  to  be  registered, 
and  the  displayment  on  the  automobile  of  the  registered 
number  in  Arabic  numerals  not  less  than  four  inches  long, 
and  which  also  exacted  a  registration  fee  of  two  dollars 
for  each  vehicle.  In  this  case  the  court  declared  that  there 
could  be  no  question  as  to  the  right  of  the  legislature,  in 
the  exercise  of  the  police  power,  to  regulate  the  driving 
of  automobiles  on  the  public  avenues  of  travel;  that  they 
are  capable  of  being  driven,  and  are  apt  to  be  driven, 
at  a  high  rate  of  speed,  and  when  not  properly  driven  are 
so  dangerous  as  to  make  some  regulation  necessary  for 
the  safety  of  other  persons  on  the  public  highways.  It 
was  also  declared  that  the  registration  fee  was  clearly  a 
license  fee,  and  not  a  tax ;  and  that,  since  the  act  was 
passed  by  the  legislature,  it  was  unnecessary  to  consider 
whether  a  like  act  could  be  passed  by  a  city.  The  court 
distinguished  the  case  of  Chicago  v.  Banker,  112  111.  App. 

10.   See  L.  R.  A.  (N.  S.)  vol.  I.,  p.  127. 


gg  THE  LAW  OF  AUTOMOBILES. 

94,  on  the  ground  that  the  ordinance  of  the  city  of 
Chicago  involved  in  that  case  was  passed  by  a  municipahty 
and  not  by  the  legislature.  Where  the  charter  of  a  city 
authorized  the  common  council  to  control,  prescribe,  and 
regulate  the  use  of  its  streets,  etc.,  it  was  held  that  there 
was  conferred  upon  the  city  council  authority  to  pass  an 
ordinance  requiring  the  regulation  and  numbering  of  auto- 
mobiles using  the  streets  of  the  city,  and  imposing  a  fee  of 
one  dollar  therefore  to  cover  the  cost  of  aluminum  figures 
to  compose  the  number,  furnished  by  the  city.^^ 

Where  it  was  contended  that  a  provision  of  a  city  or- 
dinance for  registering  and  numbering  amounted  to  a 
license,  and  that  a  grant  of  authority  to  regulate  gave  the 
city  no  power  to  license,  the  court  declared  that  the  provi- 
sion, if  a  license  at  all,  was  a  license  as  a  mere  means  of 
regulation;  and,  if  the  speed  of  automobiles  cannot  be 
effectually  regulated  without  licensing  them,  the  grant  of 
the  power  to  regulate  confers  upon  the  city  the  power  to 
license,  unless  the  exercise  of  that  power  is  forbidden  by 
some  other  provision  of  the  law.^^ 

An  act  of  Pennsylvania  which  empowered  the  city  of 
Pittsburg  "  to  regulate  and  license  all  cars,  wagons,  drays, 
coaches,  omnibuses,  and  every  description  of  carriages " 
was  held  to  authorize  the  city  to  impose  a  license  on  auto- 


11.   Local   or  mnnicipal   requlrementi. — People    v.    Schneider, 
(Mich.  1905)   103  N.  W.  Rep.  172.  12  Det.  L.  N.  32,  69  L.  R.  A.  345. 
In  this  case  the  court  in  commenting  on  the  case  of  Chicago  v. 
Banker,  112  111.  App.  94,  stated  that  the  city  ordinance  in  that  case 
went  further  than  the  one  in  the  case  at  bar. 

New  York  decUion*.— Buffalo  v.  Lewis,  123  N.  Y.  App.  Div.  163, 
108  N.  Y.  S.  450,  affirmed  by  Court  of  Appeals,  N.  Y.  Law  Journal, 
June  1,  1908;  People  v.  Keeper  of  Prison,  121  N.  Y.  App.  Div.  645, 
106  N.  Y.  S.  314.  affirmed  190  N.  Y.  315. 

12.  Power«  municipality. — People  v.  Schneider,  (Mich.  1905) 
103  N.  W.  Rep.  172,  12  Det.  L.  N.  32,  69  L.  R.  A.  345. 


REGISTRATION  AND  LICENSING.  69 

mobiles,  notwithstanding  they  were  unknown  when  the  act 
was  passed. ^^ 

As  bearing  on  the  question  whether  legislation  enacted 
before  the  automobile  was  known  or  in  use  includes  the 
modern  means  of  transportation,  it  should  be  mentioned 
here  that  a  statute  imposing  a  tax  on  the  transportation  of 
"  hacks,  cabs,  omnibuses,  and  other  vehicles  for  the  trans- 
portation of  passengers  for  hire  "  was  held  not  to  include 
an  electric  automobile  where  such  was  not  known  or  in  use 
at  the  time  the  act  was  passed.^  ^ 

§  9.  Constitutional  law. 

In  almost  all  of  the  cases  where  automobile  legislation 
has  been  contested  it  has  been  urged  that  the  legislation 
requiring  the  registration  and  licensing,  or  prescribing 
other  duties  of  automobilists,  was  unconstitutional  as  im- 
posing burdens  upon  the  automobile  driver  which  were 
not  imposed  against  others,  consequently  there  was  an  un- 
authorized and  unconstitutional  discrimination  or  class 
legislation,  but  the  contention  has  been  decided  to  be  un- 
sound, and  the  legislation,  generally,  has  been  upheld. ^^ 

13.  Authority  of  municipality  under  general  licensing  law. 

— Com.  V.  Hawkins,  14  Pa.  Dist.  Rep.  592.  Compare  Washington 
Elec.  Vehicle  Transp.  Co.  v.  District  of  Columbia,  19  App.  Cas.  (D. 
C.)  462. 

14.  Applicahility  of  old  law. — Washiington  Elec.  Vehicle 
Transp.  Co.  v.  District  of  Columbia  19  App.  Cas.  (D.  C.)   462. 

15.  Legislation  constitutional. — Christie  v.  Elliott,  215  111.  31, 
74  N.  E.  Rep.  1035,  vol.  1  L.  R.  A.  (N.  S.)  124;  Com.  v.  Boyd,  188 
Mass.  79,  74  N.  E.  Rep.  255;  People  v.  Schneider,  (Mich.  1905)  103 
N.  W.  Rep.  173,  12  Det.  L.  N.  32,  69  L.  R.  A.  345;  People  v. 
MacWilliams,  91  N.  Y.  App.  Div.  176,  86  N.  Y.  Supp.  357;  Com.  v. 
Densomer,  13  Pa.  Dist.  Rep.  639;  Unwin  v.  State,  64  Atl.  Rep.  113, 
affirmed.  State  v.  Unwin,  68  Atl.  Rep.  110. 

Pointing  out  constitutional  provision  violated. — Where  it 
was  attempted  to  question  the  consitutionality  of  the  Missouri  Auto- 
mobile Act  of  1903,  which  required  a  license  on  the  part  of  persons 


70  THE  LAW  OF  AUTOMOBILES. 

Class  legislation. — Among  the  many  complaints  by  auto- 
mobilists  against  automobile  laws,  it  is  frequently  alleged 

desiring  to  operate  an  automobile,  the  court  declined  to  consider  the 
question,  because  neither  the  article,  nor  the  section  of  the  Constitu- 
tion claimed  to  have  been  violated,  was  pointed  out  or  referred  to  in 
the  defendant's  motions  or  briefs.  State  v.  Cobb,  (Mo.  App.)  87  S.  W. 
Rep.  551. 

The  MisBonri  law  of  1903,  p.  162,  relating  to  the  operation  and 
Bpeed  of  automobiles  on  the  highways  of  the  State,  fixing  the  amount 
of  license,  and  prescribing  a  penalty  for  violating  the  same,  is  not 
unconstitutional  as  class  legislation,  in  that  it  discriminates  against 
certain  users  of  the  highway.— State  v.  Swagerty,  102  S.  W.  Rep., 
483,  203  Mo.  517,  10  L.  R.  A.  (N.  S.),  601. 

In  New  York  the  Motor  Vehicle  Law  (chap.  538,  Laws  of  1904) 
was  designed  as  a  new,  complete  and  general  enactment  to  take  the 
place  of  all  previous  statutes  and  ordinances  relating  to  the  use  of 
streets  and  highways  by  motor  vehicles.  A  city  has,  therefore,  no 
authority  by  virtue  of  its  charter  provisions  previously  enacted  to 
impose  a  charge  upon  such  vehicles  using  its  streets.  Nor  can  such 
a  charge  be  upheld  by  designating  it  in  the  ordinance  as  a  tax,  as  in 
this  case,  and  providing  that  its  proceeds  shall  go  to  the  street  repair 
fund. 

Automobiles  have  but  recently  come  into  common  use.  Within 
the  last  few  years  their  use  has  not  only  greatly  increased,  but 
tours  therewith  have  been  extended  to  long  distances  and  through 
many  municipalities.  Good  judgment  has  not  always  accompanied 
their  use,  and  the  rights  of  others  have  sometimes  been  overlooked 
by  their  owners  or  drivers,  and  more  or  less  opposition  to  the  streets 
and  highways  being  occupied  by  automobiles  has  arisen.  The  opposi- 
tion to  such  use  has  frequently  found  exi)ression  in  local  restrictive 
rules  and  ordinances.  Such  local  rules  and  ordinances  existing  prior 
to  the  enactment  of  the  Motor  Vehicle  Law  were  not  only  dissimilar 
and  conflicting,  but  sometimes  difficult  to  understand.  The  necessity 
for  a  uniform  law  throughout  the  States  was  apparent.  The  Motor 
Vehicle  Law  was  clearly  designed  as  a  new,  complete  and  general 
enactment  to  take  the  place  of  all  previous  statutes,  ordinances  or 
rules  relating  to  the  use  of  streets  and  highways  by  motor  vehicles. 
The  purpose  of  the  Legislature  in  enacting  such  law  is  shown  in  the 
clear  and  unmistakable  language  used  by  it.  In  the  first  section  of 
the  act  it  asserts  that,  except  as  therein  otherwise  provided,  it  shall 
be  controlling  in  the  use  of  the  public  highways.  With  the  excep- 
tions stated  in  the  act,  it  provides  that  local  authorities  shall  have 


REGISTRATION  AND  LICENSING.  YJ 

that  such  laws  constitute  class  legislation  and  are  for  that 
reason  illegal.     It  is  therefore  pertinent  to  ask  what  con- 


no  power  to  pass,  enforce  or  maintain  any  ordinance,  rule  or  regula- 
tion requiring  of  any  owner  or  operator  of  a  motor  vehicle  any  license 
or  permit  to  use  the  public  highways,  or  excluding  or  prohibiting 
any  motor  vehicle  from  the  free  use  of  such  highways,  or  in  any  way 
affecting  the  use  of  the  public  highways  contrary  to  or  inconsistent 
with  the  provisions  of  the  act.  It  further  expressly  enacts  that  all 
ordinances,  rules  or  regulations  then  in  force  are  of  no  validity  or 
effect,  and  that  all  acts  and  parts  of  acts  inconsistent  with  the  Motor 
Vehicle  Law  or  contrary  thereto  so  far  as  they  are  inconsistent  or 
contrary  are  repealed. 

It  is  well  settled  that  where  a  later  act  covers  the  whole  subject 
of  earlier  acts  and  embraces  new  provisions,  and  which  act  plainly 
shows  that  it  was  intended  not  only  as  a  substitute  for  the  earlier 
acts,  but  to  cover  the  whole  subject  then  considered  by  the  Legislature 
and  to  prescribe  the  only  rules  in  respect  thereto,  it  will  operate  as  a 
repeal  of  all  former  statutes  relating  to  such  subject-matter,  even 
if  such  former  acts  are  not  in  all  respects  repugnant  to  the  new  act. 
(Pratt  Institute  v.  City  of  New  York,  183  N,  Y.,  151,  and  cases 
therein  cited;  Black  on  Interpretation  of  Laws,  116;  Matter  of  Troy 
Press  Co.,  94  App.  Div.,  514;  aff'd  179  N.  Y.,  529;  Matter  of  B.,  Q.  C. 
&  S.  R.  R.  Co.,  185  N.  Y.,  171). 

In  this  case  the  intention  of  the  Legislature  to  repeal  all  laws 
inconsistent  with  and  contrary  to  it  and  to  make  the  act  complete 
and  exclusive  is  further  shown  in  reserving  to  municipalities  the 
right  upon  certain  conditions  to  limit  by  ordinance,  rule  or  reg- 
ulation the  speed  of  motor  vehicles  on  the  public  highways  and  to 
make,  enforce  and  maintain  further  ordinances,  rules  or  regulations 
affecting  motor  vehicles  which  are  offered  to  the  public  for  hire. 
(See  eople  ex  rel.  Hainer  v.  Keeper  of  Prison,  190  N.  Y.,  315.) 

Prior  to  the  enactment  of  the  Motor  Vehicle  Law  some  of  the 
provisions  now  included  therein  were  included  in  sections  163  and 
169a  of  the  Highway  Law.  On  the  same  day  that  the  Motor  Vehicle 
Law  was  enacted  said  section  169a  of  the  Highway  Law  was  repealed 
and  said  section  163  of  the  Highway  Law  was  amended  by  striking 
therefrom  all  reference  to  motor  vehicles.  It  is  claimed  by  the 
appellant  that  by  virtue  of  section  32  of  the  Statutory  Construction 
Law  such  provisions  of  the  Motor  Vehicle  Law  as  are  substantial 
re-enactments  of  the  Highway  Law,  as  it  existed  prior  to  May  3, 
1904,  should  be  considered  as  amendments  of  much  Highway  Law 
and  that  the  Motor  Vehicle  Law  should  so  far  as  it  is  a  re-enactment 


72  THE  LAW  OF  AUTOMOBILES. 

stitutes  class  legislation,  for  there  is  evidently  gross  mis- 
understanding on  the  part  of  many  in  regard  to  class  legis- 
lation and  its  constitutionality  in  the  United  States, 

The  Federal  Constitution  prohibits  the  States  to  enact 
laws  which  deny  to  persons  the  equal  protection  of  the 
State  laws.  This  constitutional  provision  makes  it  illegal 
for  any  State  to  arbitrarily  pick  out  one  class  of  persons 
and  legislate  against  them  concerning  any  subject.  But 
such  discrimination  must  be  arbitrary,  not  based  upon  any 
logical  or  reasonable  cause  for  distinction  in  order  to  be 
illegal.  Let  us  take  an  example.  For  a  State  to  pro- 
vide that  all  persons  of  a  certain  color  shall  be  subject  to 
certain  regulations  and  all  persons  of  a  different  color  shall 
not  be  so  restricted  would  clearly  violate  the  constitutional 
prohibition.  In  such  a  case  the  legislation  is  arbitrary,  and 
the  discrimination  is  based  upon  color  alone,  which  cannot 
constitute  any  reasonable  or  logical  foundation  for  subject- 
ing the  designated  class  to  special  legislation.  But  in  re- 
spect to  subjects  which  require  regulation  because  of  the 
public  welfare  a  different  question  is  presented. 

The  State  has  a  perfect  right  to  legislate  concerning 
travel  on  the  public  highways.  It  has  a  right  to  provide 
that  certain  vehicles  which  are  capable  of  maintaining  a 

of  the  provision  previously  in  the  Highway  Law  be  deemed  a  statute 
of  a  prior  date  to  the  charter  of  the  City  of  Buffalo. 

The  sections  of  the  Highway  Lo-w  were  not  in  terms  repealed  or 
amended  by  the  Motor  Vehicle  Law.  Such  repeal  and  amendment 
was  by  a  seprate  act.  The  intention  of  the  Legislature  is  controlling. 
It  is  clear,  as  \/e  have  stated,  that  it  was  the  intention  of  the  Legis- 
lature to  enact  a  new,  independent  and  general  statute  relating  to 
motor  vehicles,  and  it  should  be  so  construed  in  all  its  parts  as  a 
statute  taking  effect  on  May  3,  1904,  the  date  of  its  enactment.  It 
prohibits  the  Common  Council  of  the  City  of  Buffalo  from  passing 
an  ordinance  affecting  the  public  highways  of  the  city  contrary  to  or 
inronsistent  with  the  provisions  of  such  Motor  Vehicle  Law.  See 
Buffalo  V.  Lewis  N.  Y.  Law  Journal  June  1,  1908. 


REGISTRATION  AND  LICENSING.  73 

much  higher  rate  of  speed  than  other  vehicles  shall  do  cer- 
tain things  that  the  other  vehicles  are  not  required  to  do. 
The  State  may  constitutionally  regulate  a  certain  class  of 
vehicles,  such,  for  example,  as  automobiles,  and  make 
special  provisions  for  them,  provided  the  law  applies 
equally  to  all  members  of  the  same  class.  Although  auto- 
mobile legislation  is  in  a  popular  sense  class  legislation, 
inasmuch  as  the  laws  apply  to  automobiles  only,  neverthe- 
less, such  class  legislation  is  valid  and  constitutional,  since 
there  is,  as  has  been  decided  by  the  courts,  a  necessity  for 
regulating  the  power  vehicle.  So  when  we  speak  of  class 
legislation  we  use  a  generic  term,  and  automobile  legisla- 
tion is  included.  But  if  we  mean  illegal  class  legislation, 
then  we  are  speaking  about  a  very  different  thing  and  must, 
in  order  to  be  accurate,  confine  our  remarks  to  that  legis- 
lation which,  according  to  the  decisions  of  the  United 
States  Supreme  Court,  violates  the  constitutional  provision 
prohibiting  arbitrary  discrimination.  Certain  automobile 
legislation  in  this  country  arbitrarily  and  unconstitutionally 
discriminates;  for  example,  legislation  allowing  automo- 
bile owners  the  special  privilege  of  using  surety  company's 
bail  bonds  and  denying  the  same  privilege  to  chauffeurs, 
hirers  of  automobiles  and  those  who  borrow  machines. 
So  also  there  should  be  no  discrimination  between  drivers 
who  are  owners  and  drivers  for  hire  who  are  not  owners. 
Both  classes  are  drivers  and  should  be  subject  to  the  same 
laws  without  discrimination. 

Municipal  and  State  regulation.— It  needs  no  argument 
to  be  convinced  that  municipal  regulation  of  automobiling 
works  more  mischief  than  good,  but  a  study  of  recent  auto- 
mobile legislation  shows  conclusively  that  the  tendency  is 
to  enact  State  laws  for  the  purpose  of  governing  motor 
vehicle  travel,  notwithstanding  the  many  mischievous  at- 
tempts this  year  on  the  part  of  municipalities  to  restrict 


Y4  THE  LAW  OF  AUTOMOBILES. 

automobiling.  As  examples  of  State  legislation  displacing 
municipal  regulations  we  have  the  acts  which  recently  have 
been  passed  in  the  States  of  Illinois  and  Missouri.  Here- 
tofore the  automobile  regulations  in  Illinois  were  purely 
local,  and  in  Missouri  a  license  had  to  be  taken  out  in  each 
county  through  and  into  which  the  automobilist  desired  to 
pass.    Now  Missouri  has  a  general  law  and  so  has  Illinois. 

Concerning  the  right  of  municipalities  to  enact  auto- 
mobile regulations  when  there  exists  a  general  State  law 
covering  the  same  subject  there  has  been  much  conflicting 
discussion.  It  has  been  held  in  IVisconsin,  under  a  statute 
granting  to  cities  the  power  to  control  the  use  of  their 
streets,  that  an  ordinance  making  it  unlawful  to  drive  an 
automobile  on  a  street  at  a  greater  rate  of  speed  than  six 
miles  per  hour  is  valid,  notwithstanding  the  State  law  pro- 
viding that  no  driver  in  charge  of  an  automobile  shall  per- 
mit it  to  be  driven  in  the  thickly  settled  portion  of  any  city 
at  a  greater  speed  than  one  mile  in  five  minutes,  nor  over 
any  crossing  faster  than  one  mile  in  fifteen  minutes;  and 
also  providing  that  cities  shall  have  no  power  to  pass  any 
ordinance  requiring  any  operator  of  an  automobile  any 
license  or  permit  to  use  their  streets,  or  prohibiting  any 
automobile  "  the  free  use  of  such  "  streets.  See  City  of 
Bellington  v.  Cissna,  87  Pac.  Rep.  481.  So  also,  in  Penn- 
sylvania it  has  been  decided  that  a  city  ordinance  requiring 
the  owner  of  an  automobile  to  take  out  a  license,  and  to 
carry  a  license  tag,  is  not  affected  by  the  State  act  providing 
that  every  automobile  owner  shall  obtain  from  the  State 
Highway  Department  a  license,  and  that  license  tags  shall 
be  carried  exhibiting  the  license  number  and  the  number 
of  the  year. 

From  the  foregoing  authorities  it  would  seem  that  un- 
less a  municipality  is  expressly  or  by  necessary  implication 
prohibited  by  the   State  law  to  regulate  automobiling,   it 


REGISTRATION  AND  LICENSING.  75 

may  pass  ordinances  limiting  the  speed  of  automobiles  and 
requiring  licenses. 

Automobiles  may  be  excluded  from  a  scheme  of  muni- 
cipal taxation  in  the  exercise  of  the  power  of  a  municipal 
corporation  to  classify  vehicles  for  the  purpose  of  a  vehicle 
tax  ordinance.^® 

So  also  vehicles  of  nonresidents  who  habitually  use  the 
streets  of  the  city  may  be  excluded  from  the  scheme  of 
taxation,  although  the  vehicles  belong  to  the  same  category 
as  those  subject  to  the  tax  if  owned  by  residents.*'^ 

An  ordinance  of  a  city  which  requires  the  registration 
and  numbering  of  automobiles,  and  requiring  the  payment 
of  one  dollar  to  cover  the  value  of  figures  furnished  by  the 
city  to  form  the  number,  was  held  not  to  constitute  a  license 
for  revenue,  but  merely  a  regulation.^  ^ 

A  law  requiring  the  registration  of  automobiles  and  the 
displayment  of  a  number  in  the  rear  corresponding  to  the 
registration  number  does  not  violate  a  constitutional  pro- 
vision forbidding  unreasonable  searches,  nor  a  violation 
of  a  provision  declaring  that  no  person  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  or  be 
deprived  of  his  liberty  or  property  without  due  process  of 
law.^^ 

A  statute  of  the  State  of  New  York,  which  provided  for 
the  registration  of  automobiles  by  owners,  was  attacked  as 


16.  Municipal  taxation. — Kersey  v.  Terre  Haute,  161  Ind.  471, 
68  N.  E.  Rep.  1027. 

17.  Vehicles  of  non-residents.—  Kersey  v.  Terre  Haute,  161  Ind. 
471,  68  N.  E.  Rep.  1027. 

18.  Distinction  between  revenue  measure  and  regulation. 
—People  V.  Schneider,  (Mich.  1905)  103  N.  W.  Rep.  172,  12  Det.  L.  N. 
32,  69  L.  R.  A.  345. 

19.  Constitutional  provisions  not  violated. — People  v.  Schnei- 
der, (Mich.  1905)  103  N.  W.  Rep.  172,  12  Det.  L.  N.  32,  69  L.  R. 
A.  345. 


76  THE  LAW  OF  AUTOMOBILES. 

unconstitutional,  and  it  was  contended  that  one  of  its  pro- 
visions requiring  a  number  corresponding  to  the  number 
of  the  certificate  obtained  on  registering  the  vehicle  shall 
be  conspicuously  attached  on  the  rear  of  the  vehicle  so  as 
to  be  plainly  visible  was  inoperative,  and  that  a  failure  to 
comply  with  the  requirement  constituted  no  crime.  An- 
other provision  of  the  act  was  claimed  to  be  class  legisla- 
tion, in  conflict  with  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  because  it  provided  that  the  section 
"  shall  not  apply  to  a  person  manufacturing  or  dealing 
in  automobiles  or  motor  vehicles,  except  those  for  his  own 
private  use,  and  except  those  hired  out."  The  court  de- 
clared that  it  was  not  necessary  to  determine  the  com- 
petency of  the  legislature  to  discriminate  in  this  way  be- 
tween dealer  and  manufacturer  on  the  one  hand,  and 
private  owners  on  the  other,  in  using  automobiles  on  the 
public  highways,  as  the  statute  in  its  proper  construction 
did  not  exempt  the  manufacturer  or  dealer  when  he  takes 
an  automobile  which  he  has  in  stock  for  sale,  or  for  repairs, 
or  in  storage,  out  upon  the  public  streets,  and  operates  it 
by  its  own  power,  from  the  duty  of  registering  the  auto- 
mobile and  attaching  to  it  a  tag  containing  the  number 
corresponding  to  the  certificate.^*^ 

The  Act  of  1903  of  Pennsylvania  which  required  the 
registration  of  automobiles  was  held  not  to  be  unconstitu- 
tional as  lacking  uniformity,  because  it  provided  that  the 
law  shall  not  apply  "  to  any  of  the  motor  vehicles  which 


20.  New  York  statute. — People  v.  MacWilliams,  91  N.  Y.  App. 
Dlv.  17G,  80  N.  Y.  Supp.  357. 

Authority  to  enact  local  regrulations  in  New  York. — Buffalo 
V.  Lewis.  123  N.  Y.  App.  Div.  163,  108  N.  Y.  S.  450,  afflrmed  by  Court 
of  Appeals,  N.  Y.  Law  Journal,  .Tune  1,  1908;  People  v.  Keeper  of 
Prison,  121  N.  Y.  App.  Div.  645,  106  N.  Y.  S.  314,  affirmed  190  N.  Y. 
315. 


REGISTRATION  AND  LICENSING.  77 

any  manufacturer  or  vendor  of  automobiles  may  have  in 
stock  for  sale  and  not  for  his  private  use  or  hire."  ^^ 

But  the  section  of  the  Pennsylvania  Act  of  April  19, 
1905,  P.  L.  217,  so  far  as  the  exemption  of  "any  motor 
vehicle  which  any  manufacturer  or  vendor  may  have  in 
stock,  and  not  for  hire  or  for  his  private  use,"  is  concerned, 
is  inoperative  and  futile.  The  provision  is  inconsistent 
with  the  remainder  of  the  act.  None  of  the  provisions 
apply  to  motor  vehicles  or  automobiles  at  all,  but  only  to 
the  persons  engaged  in  operating  them.^^ 

This  ruling  of  the  Attorney-General's  Department  of 
Pennsylvania  is  doubtful  as  a  sound  proposition  of  statu- 
tory construction.  A  provision  of  an  act  which  requires 
owners  of  automobiles  to  take  out  a  license  is  obscure 
where  the  title  provides  for  licensing  operators.  The  title 
is  misleading  since  the  owner  may  be  one  person  and  the 
operator  another.  Even  though  the  legislature  may  have 
intended  to  license  the  machine  or  the  operator,  a  penal 
statute  must  be  taken  as  it  is  written.^^ 


21.  Pennsylvania   statute. — Com.  v.   Densmore,   29   Pa.   Co.   Ct. 

Rep.  219. 

Sec.  12  of  the  Pennsylvania  law  being  inoperative  does  not  render 
the  act  unconstitutional.  Com.  v.  Templeton,  22  Montg.  Co.  L.  Rep. 
203. 

22.  Inoperative  provision  of  Pennsylvania  act. — In  re  Auto- 
mobile Acts,  15  Pa.  Dist.  Rep.  83;  Com.  v.  Templeton,  22  Mont. 
Co.  L.  Rep.  203. 

The  Pennsylvania  automobile  act  of  April  19,  1905,  P.  L.  217, 
applies  to  the  operator  of  an  automobile  and  not  to  the  owner. — 
Comm.  V.  David,  33  Pa.  Co.  Ct.  Rep.  12. 

23.  Defective  title  of  act. — Com.  v.  Densmore,  13  Pa.  Dist.  Rep. 
639,  29  Pa.  Co.  Ct.  Rep.  217,  holding  that  the  provisions  of  the 
Pennsylvania  Act,  April  23,  1903  (P.  L.  268),  requiring  the  owners 
of  automobiles  to  take  out  licenses,  was  so  uncertain  that  a  con- 
viction for  the  violation  could  not  be  sustained  in  view  of  the  fact 
that  there  is  nothing  in  the  act  as  to  what  the  license  shall  contain, 
and  that  the  title  of  the  act  refers  to  the  licensing  of  "  operators  "  and 


/yg  THE  LAW  OF  AUTOMOBILES. 

§  10-  Licenses. 

A  license  to  operate  an  automobile  is  merely  a  privilege. 
It  does  not  constitute  a  contract,  and  may  be  revoked  for 
cause.  Some  of  the  states  have  provided  for  revoking 
licenses  to  operate  automobiles.  This  is  a  feature  of  the 
legislation  in  some  of  the  States  and  in  England. 

The  fee  charged  for  registering  an  automobile  is  plainly 
a  license  fee  and  not  a  tax.^^ 


not  "  owners "  of  automobiles.     See  also  In  re  Automobile  Acts,  15 
Pa.  Dist.  Rep.  83. 

24.  Not  a  tax.— Com.  v.  Boyd,  188  Mass.  79,  74  N.  E.  Rep.  255. 
■What  an  automobile  license  is. — It  is  very  generally  under- 
stood throughout  the  United  States  to-day  that  in  order  for  one  to 
operate  a  motor  vehicle  on  the  public  highways  in  most  of  the 
States  it  is  first  necessary  to  procure  a  license  to  do  so  from  the 
proper  authorities.  After  having  procured  this  license,  all  that  the 
autoist  cares  about  is  his  protection  under  it  and  the  authority  it 
gives  him  to  drive  his  automobile.  The  motor  car  driver  seldom 
has  any  occasion  to  consider  the  nature  of  his  license  and  what  all 
his  rights  are  under  it  aside  from  the  privilege  given  to  him  to 
use  his  machine.  An  automobile  license  is,  however,  something 
more  than  a  mere  formality,  which  can  be  procured  by  compliance 
with  a  certain  amount  of  red  tape. 

The  various  automobile  acts  in  the  United  States  provide  for  two 
kinds  of  licenses — perpetual  and  annual.  The  perpetual  license,  of 
course,  is  more  valuable  than  one  that  is  temporary,  since  the  latter 
necessitates  the  payment  of  a  fee  periodically,  while  the  former  may 
be  procured  and  enjoyed  upon  the  payment  of  but  one  fee.  Whether 
the  license  be  temporary  or  perpetual,  it  is  in  contemplation  of  law 
merely  a  license — a  privilege.  But  what  does  such  a  license  mean, 
and  what  are  the  legal  rights  of  the  holder  under  it?  We  might 
say  that  he  has  no  legal  rights  conferred  upon  him  by  the  license, 
and  that  It  is  negative  in  its  operation.  For  without  a  license  he 
is  subject  to  arrest  and  criminal  prosecution;  with  It  he  is  immune 
from  interference.  In  other  words  the  license  confers  upon  him  a 
sort  of  negative  right  to  be  let  alone  if  he  otherwise  complies  with 
the  law.  This  is  really  all  that  the  automobilist's  license  amounts 
to.  For  It  has  been  held  many  times  by  the  highest  courts  in  this 
country  that  a  license  does  not  constitute  a  contract  within  the 
meaning  of  the  Federal  Constitution  prohibiting  a  State  from  passing 


REGISTRATION  AND  LICENSING.  79 

In  determining  the  constitutionality  of  the  New  Jersey 
Supplement  of  May  26,  1905  (P.  L.,  p.  484),  to  an  act 
defining  motor  vehicles  and  providing  for  the  registration 
and  the  regulation  of  the  same,  it  is  unnecessary  to  deter- 
mine whether  the  registration  fee  required  is  a  license  fee, 
or  a  fee  exacted  as  a  reasonable  charge  for  registering  the 
certificate  required  by  the  act,  as  in  either  case  it  is  clearly 
not  a  tax  upon  the  property  but  an  exercise  of  the  police 
power.^'^ 

any  law  impairing  the  obligation  of  contracts,  and  it  is  because  a 
license  is  not  a  contract  that  it  may  be  revoked  or  suspended  by 
legislative  authority. 

25.  Police  regulation. — Unwin  v.  State,  64  Atl.  Rep.  163,  af- 
firmed. State  V.  Unwin,  68  Atl.  Rep.  110. 

There  is  apparently  much  misunderstanding  among  automobilists 
in  regard  to  the  nature  of  the  fees  which  are  imposed  by  our  motor 
vehicle  registering  and  licensing  laws.  It  should  be  understood 
at  the  outset  that  these  fees,  which  owners  and  drivers  are  com- 
pelled to  pay,  do  not  constitute  taxes  upon  property.  The  State  of 
New  Jersey  does  not  tax  automobiles  as  property.  The  New  Jersey 
exactions  are  merely  license  fees,  if  they  can  be  held  not  to  exceed 
a  reasonable  sum.  If  it  can  be  shown  that  the  fees  are  greater  than 
seems  to  be  reasonable,  they  constitute  a  tax  upon  property  for 
residents  and  a  tax  upon  transit  against  non-residents.  Property 
taxation  does  not  in  any  form  enter  into  the  theory  of  the  New 
Jersey  Motor  Vehicle  Law. 

Whether  the  amount  of  the  registration  fee  is  based  upon  the 
horse  power  or  is  determined  by  some  other  reasonable  method  is 
immaterial,  provided  an  unreasonable  sum  is  not  charged  for  the 
license,  considering  what  the  expenses  are  to  maintain  the  motor 
vehicle  department.  This  is  a  simple  rule  of  the  law  of  taxation 
and  is  easily  applied. 

It  is  indeed  strange  that  in  the  State  of  New  York  all  that  any 
automobile  owner  needs  to  pay  is  $2,  which  payment  is  final  and 
entitles  the  owner  to  a  perpetual  license.  There  are  probably  more 
automobiles  in  the  State  of  New  York  than  in  any  other  jurisdiction 
of  the  United  States,  still  this  fee  of  $2  has  proven  to  be  adequate 
for  the  support  of  the  department  issuing  licenses  to  owners  and 
chauffeurs.  In  New'  Jersey  the  owner  of  a  30  horse  power  automo- 
bile is  compelled  to  pay  $10  annually  and  $4  every  year  for  the 


go  THE  LAW  OF  AUTOMOBILES. 

§  11-  Operation  and  effect  of  license. 

Even  after  having  obtained  authority  to  operate  one's 
car  in  the  state,  county,  or  city,  the  Hcense  is  a  protection 
only  within  the  jurisdiction  of  the  authorities  granting  it. 
Thus,  where  a  Missouri  statute  provided  that  any  person 
desiring  to  operate  an  automobile  in  a  city  must  procure  a 
license  from  the  hcense  commissioner  thereof,  and  if  he 
desires  to  operate  it  in  the  county  outside  the  city  hmits  he 
shall  procure  a  hcense  from  the  county  clerk  of  such 
county,  it  was  held  that  the  owner  of  an  automobile  was 
required  to  take  out  a  license  in  each  and  every  county 
over  the  roads  of  which  he  desires  to  operate  his  automo- 
bile.2« 

Of  course  the  rule  here  stated  must  be  considered  as  in- 
applicable to  state  registration  and  licensing  where,  by 
statute,  nonresident  licensed  and  duly  registered  motorists 
are  exempted.  In  some  of  the  states  it  is  provided  that 
machines  owned  by  nonresidents  and  driven  by  persons 
residing  and  registered  in  some  other  state  may  be  operated 
on  the  public  highways  and  streets. 

§  12.  Exemption  of  nonresidents. 

In  regard  to  the  necessity  of  taking  out  licenses  in  cer- 
tain states  by  one  who  is  duly  licensed  in  his  own  jurisdic- 
tion and  who  contemplates  a  tour,  under  the  laws  of  this 
country,  taking,  for  example,  the  act  of  the  State  of  New 


privilege  of  driving.  The  $2  paid  by  an  owner  to  the  State  of  New 
York  not  only  pays  for  the  registration  of  his  vehicle,  but  also  en- 
titles htm  to  drive  on  the  public  highway.  There  is  a  great  dis- 
crepancy between  these  figures.  The  value  of  motoring  is  no  more 
in  New  Jersey  than  it  is  In  New  York,  still  its  cost  is  higher  in  the 
former  State. 

26.  Scope  of  lice>««e.— State  v.  Cobb,  (Mo.  App.  1905)   87  S.  W. 
Rep.  55L 


REGISTRATION  AND  LICENSING.  81 

York  as  typical,  a  nonresident  who  lives  without  the  juris- 
diction of  the  United  States  is  not  exempted  in  that  State. 
The  New  York  statute  reads : 

"  The  provisions  of  this  section  shall  not  apply  to 
motor  vehicles  owned  by  non-residents  of  this  State, 
provided  the  owners  thereof  have  complied  with  any 
law  requiring  the  registration  of  owners  of  motor 
vehicles  in  force  in  the  State,   Territory  or  Federal 
district  of  their  residence,  and  the  registration  number 
showing  the  initial  of  such  State,  Territory  or  Federal 
district  shall  be  displayed  on  such  vehicle  substantially 
as  in  this  section  provided." 
Under  this   law,   and  the  other  similar   State  laws,   it 
will  be  seen  that  in  order  for  one  to  be  exempt  from  com- 
plying with  the  automobile  registration  and  licensing  pro- 
visions in  the  State  of  New  York  he  must  be  an  owner 
registered  in  another  State,  Territory,  or  Federal  district, 
at  the  place  of  his  residence,  and  the  words  "  State,"  "  Ter- 
ritory "  or  "  Federal  district "  in  this  statute  do  not  include 
the  Dominion  of  Canada  or  any  of  the  Canadian  Provinces 
or  any  other  foreign  territory.     No  doubt  in  the  practical 
administration  of  the  automobile  laws  in  the  United  States, 
Canadians  and  other  foreigners  who  are  duly  licensed  at 
home  are  permitted  to  drive  into  and  through  the  States 
of  this  country,  but  there  is  no  authority  for  this  exemp- 
tion.    We  are  not  permitted  to  motor  in  parts  of  Canada 
without  taking  out  an  additional  license,  and  it  is  even  re- 
quired that  we  shall  put  up  a  bond  covering  any  injury  that 
we  rhight  commit. 

It  will  also  be  noticed  that  under  the  usual  nonresident 
provision  chauffeurs  who  are  licensed  at  home  cannot  drive 
into  another  State  without  taking  out  a  local  license; 
neither  can  hirers  or  borrowers  of  machines  do  this.  It 
will  also  be  noticed  that  in  order  for  the  exemption  to 
6 


82 


THE  LAW  OF  AUTOMOBILES. 


apply,  the  automobilist  must  be  registered  in  the  State  of 
his  residence.  If  he  resides  in  Rhode  Island  and  does  busi- 
ness in  Connecticut,  in  which  latter  State  he  has  taken  out 
a  license,  under  the  strict  letter  of  the  Nczc  York  law  he 
cannot  drive  into  that  State  because  he  is  not  licensed  in 
the  state  of  his  residence,  no  matter  how  technically  his 
residence  may  be  in  Rhode  Island. 

It  may  reasonably  be  asked  if  our  nonresident  exemp- 
tions are  logical  or  even  intelligent. 

§  13.  Exemption  based  upon  reciprocity. 

Several  states  have  considered  legislation  providing  for 
the  exemption  of  nonresident  automobilists  registered  in 
their  home  states,  provided  these  latter  states  grant  the 
same  privilege  in  return. 

Such  a  legislation  would  be  unconstitutional,  because 
the  reciprocity  condition  conflicts  directly  with  that  clause 
of  the  Federal  Constitution  which  prohibits  a  state  to  dis- 
criminate against  nonresidents  merely  because  their  home 
state  does  not  reciprocate  the  privileges  granted.  The 
state  has  the  right  to  require  all  nonresident  automobilists 
to  take  out  a  local  automobile  license,  but  it  cannot  pick 
out  and  discriminate  against  motorists  whose  home  State 
does  not  grant  exemption  privileges  to  nonresidents. 

The  theory  of  this  legislation  seems  to  be  founded  on  the 
fact  that  a  state  may  regulate  the  right  of  a  foreign  cor- 
poration to  do  business  within  its  jurisdiction,  and  may 
compel  it  to  take  out  a  local  license.  Retaliatory  legisla- 
tion depriving  corporations  of  another  state  of  the  right 
to  do  business  unless  a  similar  privilege  is  granted  by  that 
other  state  has  been  common  in  this  country,  and  does  not 
conflict  with  the  Constitution,  since  a  corporation  has  no 
right  to  migrate  into  another  state  unless  permission  is 
given  it  to  do  so.     Consequently,  the  state  can  entirely 


REGISTRATION  AND  LICENSING.  83 

prohibit  the  corporation  from  entering  its  jurisdiction, 
which  includes  the  right  of  prohibiting  entry  into  its  juris- 
diction under  certain  conditions. 

AutomobiHsts  are  not  corporations,  however.  Every 
citizen  of  this  country  has  the  inviolable  right  to  travel 
into  and  through  any  state  he  wishes  as  long  as  he  com- 
plies with  the  laws  governing  the  local  inhabitants.  Any 
law  discriminating  against  nonresidents  under  certain  con- 
ditions, depending  upon  the  action  of  the  home  state  of 
these  nonresidents,  is  null  and  void.  So  let  those  who 
contemplate  introducing  automobile  legislation  with  such 
a  provision  strike  out  the  objectionable  part,  and  provide 
for  either  total  exemption,  non-exemption  or  exemption 
for  a  limited  time,  with  no  unconstitutional  reciprocity 
condition. 


CHAPTER  VI. 

OPERATION  ON  HIGHWAY— IN  GENERAL. 

Sec.  1.  Rigbt  to  operate  on  the  highway. 

2.  Care  in   operating — Restive  horses. 

3.  The  law  of  the  road— In  general. 

4.  Vehicles  meeting   and    passing. 

5.  Rule  not  inflexible,  but  is  a  rule  of  negligence, 

6.  Presumption  arising  from  disobedience. 

7.  Where  one  traveler  overtakes  and  passes  another. 

8.  Collision — Contributory  negligence. 

9.  Rights  of  footmen  and  vehicles — Children  in  the  street. 

10.  Injury   resulting  from   fright. 

11.  Roadworthiness  of  vehicle,  tackle  or  gearing. 

12.  Street  crossings,  crossroads. 

13.  Vehicles  standing  on  the  highway. 

14.  Liability  of  owner  for  acts  of  person  operating  car. 

15.  Speed  regulations. 

16.  Injuries  resulting  from  defects  in  highway. 

17.  Care    in   avoiding   defects — Contributory   negligence. 

18.  Notice  of  defects — Notice  of  accident. 

§  1.  Right  to  operate  on  the  highway. 

This  chapter  is  intended  to  treat  of  the  subjects  herein 
discussed  in  a  general  way  merely.  The  various  topics  will 
be  more  particularly  considered  in  subsequent  chapters. 

The  owner  of  an  automobile  has  a  right  to  use  the  high- 
way provided  that  he  does  not  violate  the  law  in  so  doing.^ 
The  law  docs  not  denounce  motor  carriages  as  such  on  the 


1.  Right  to  use  highway.— Christie  v.  Elliott,  210  111.  48,  1 
L.  R.  A.  (X.  S.)  124,  74  N.  E.  Rep.  103.5;  Chicago  v.  Banker,  112  III. 
App.  94;  Shinkle  v.  McCullough,  116  Ky.  960,  965. 

[84] 


OPERATION  ON  HIGHWAY— IN  GENERAL.  85 

public  ways.  For  so  long  as  they  are  constructed  and 
propelled  in  a  manner  consistent  with  the  use  of  highways, 
and  are  calculated  to  subserve  the  public  as  a  beneficial 
means  of  transportation  with  reasonable  safety  to  travelers 
by  ordinary  modes,  they  have  equal  right  with  other 
vehicles  in  common  use  to  occupy  the  streets  and  roads.^ 
Their  use,  nevertheless,  should  be  accompanied  with  that 
degree  of  prudence  in  management  and  consideration  for 
the  rights  of  others  which  is  consistent  with  their  safety.^ 

§  2.  Care  in  operating— Restive  horses. 

The  rule  of  the  common  law  is  and  always  has  been  that, 
although  a  person  might  travel  the  highway  with  a  convey- 
ance which  is  likely  to  frighten  horses,  yet,  while  doing  so, 
he  must  exercise  reasonable  care  to  avoid  accident  and 
injury  to  others  traveling  along  the  highway.^  The  fact 
that  motor  vehicles  are  novel  and  unusual  in  appearance, 
and  for  that  reason  likely  to  frighten  horses  unaccustomed 
to  see  them,  is  no  reason  for  prohibiting  the  use  of  auto- 
mobiles.^    It  is  the  duty  of  one  operating  a  motor  car  to 


2.  Equal  rights. — Indiana  Springs  Co.  v.  Brown,  74  N.  E.  615. 

3.  Prudence  in  management. — Shinkle  v.  McCullough,  116  Ky. 
960,  965. 

4.  Reasonable  care.— Murphy  v.  Wait,  102  N.  Y.  App.  Div.  121, 
92  N.  Y.  Supp.  253. 

See  also  Upton  v.  Windham,  75  Conn.  288,  293,  where  the  court 
said:  "The  passing  of  an  automobile  driven  with  ordinary  care 
and  at  a  reasonable  speed,  and  the  fright  and  shying  of  a  gentle 
horse,  constitute  one  of  those  events  in  the  proper  use  of  the  high- 
way calling  for  its  maintenance  in  a  safe  condition  .  .  ." 

5.  Unusual  in  appearance  immaterial. — Indiana  Springs  Co. 
V.  Brown,  74  N.  E.  615,  616,  where  it  was  said:  "In  all  human 
activities  the  law  keeps  up  with  improvement  and  progress  brought 
about  by  discovery  and  invention,  and,  in  respect  to  highways,  if 
the  introduction  of  a  new  contrivance  for  transportation  purposes, 
conducted  with  due  care,  is  met  with  inconvenience  and  even  inci- 
dental injury  to  those  using  ordinary  modes,  there  can  be  no  re- 


gg  THE  LAW  OF  AUTOMOBILES. 

take  all  proper  precautions  against  frightening  horses  or 
other  domestic  animals  met  on  the  highway.®  The  quan- 
tum of  care  required  is  to  be  estimated  by  the  exigencies  of 
the  particular  situation;  that  is,  by  the  place,  presence,  or 
absence  of  other  vehicles  and  travelers ;  whether  the  horse 
driven  is  wild  or  gentle ;  whether  the  conveyance  or  power 
used  are  common  or  new  to  the  road ;  the  known  tendency 
of  any  feature  to  frighten  animals,  etc.*^  If  the  operator 
knew,  or  could  have  known  by  the  exercise  of  ordinary 
care,  that  the  machine  in  his  possession  and  under  his  con- 
trol has  so  far  excited  a  horse  as  to  render  the  horse  danger- 
ous and  unmanageable,  it  is  the  motorist's  duty  to  stop  his 
automobile  and  take  such  other  steps  for  the  other  traveler's 
safety  as  ordinary  prudence  might  suggest.^  To  drive  a 
noisy  machine  at  a  high  rate  of  speed  so  that  a  traveler's 
horse  is  frightened  is  negligence  and  renders  the  motorist 
liable  to  damages.^     To  drive  an  automobile  at  a  speed  of 


covery,  provided  the  contrivance  is  compatible  with  the  general  use 
and  safety  of  the  road.  It  is,  therefore,  the  adaptation  and  use, 
rather  than  the  form  or  kind  of  conveyance,  that  concerns  the  courts. 
It  is  improper  to  say  that  the  driver  of  the  horse  has  rights  in  the 
road  superior  to  the  driver  of  the  automobile.  Both  have  the  right 
to  use  the  easement,  and  each  is  equally  restricted  in  the  exercise 
of  his  rights  by  the  corresponding  rights  of  the  other.  Each  is  re- 
quired to  regulate  his  own  use  by  the  observance  of  ordinary  care 
and  caution  to  avoid  receiving  injury  as  well  as  inflicting  injury 
upon  the  other." 

6.  Frightening  horses. — Shinkle  v.  McCullough,  116  Ky.  960, 
965;  Indiana  Springs  Co.  v.  Brown,  74  N.  E.  615. 

7.  Qnantom  of  care. — Indiana  Springs  Co.  v.  Brown,  74  N.  E. 
615,  61C. 

8.  Dnties  of  antomohile  dxWers. — Shinkle  v.  McCullough,  116 
Ky.  960,  965. 

9.  Speed  anid  noise.— Shinkle  v.  McCullough,  116  Ky.  960.  See 
also  Mason  v.  West,  01  N.  Y.  App.  Div.  160.  Whether  a  motor  car  is 
a  nuisance  or  not  Is  a  question  for  the  jury.  See  Barlow,  The  Law 
of  Mechanical  Traction  on   Highways,  p.  276. 


OPERATION  ON  HIGHWAY— IN  GENERAL.  87 

twenty  miles  an  hour  towards  a  horse  and  carriage  on 
a  narrow  approach  to  a  bridge,  whence  there  is  no 
escape  for  the  horse  except  by  proceeding  forward  to  a 
cross  street,  and,  though  seeing  the  terror  of  the  horse 
and  its  driver's  signals  to  stop,  to  refuse  to  slacken  its 
speed,  and  thus  to  cause  the  horse  to  run  away,  is  an  un- 
warrantable use  of  the  highway,  rendering  the  motorist 
liable  for  damages.^'^  It  is  a  common  statutory  provis- 
ion at  the  present  time  to  require  a  motorist  to  stop  upon 
a  signal  by  the  driver  of  a  horse  or  other  domestic  ani- 
mal, and  to  remain  stationary  long  enough  to  allow  the 
horse  or  domestic  animal  to  pass.  A  motorist  must  obey 
such  a  statute  or  be  liable  for  the  consequences.^^  Inde- 
pendently of  such  a  statute,  or  the  giving  of  a  signal, 
the  automobilist  should  stop  when  he  sees  that  he  is  fright- 
ening a  horse  by  proceeding.^^  Under  a  statute  providing 
that  "whenever  it  shall  appear  that  any  horse  driven  or 
ridden  by  any  person,"  etc.,  is  about  to  become  frightened, 
the  motorist  shall  stop,  etc.,  it  is  proper  to  instruct  the  jury 
that  if  it  might  appear  to  the  motorist,  by  the  exercise  of 
reasonable  diligence,  that  the  horse  was  about  to  become 
frightened,  it  would  be  the  motorist's  duty  to  stop.^^  A 
finding  of  negligence  on  the  part  of  a  defendant,  driver  of 
an  automobile,  is  not  authorized  by  evidence  that,  when  at 
the  top  of  a  hill  he  saw  the  plaintiff's  team  at  the  foot  of  it, 
he  disconnected  the  engine  from  the  running  gear  of  his 


10.  Liability  for  damages. — Indiana  Springs  Co.  v.  Brown,  74 
N.  E.  615. 

11.  Obeying  statute. —Murphy  v.  Wait,  N,  Y.  App.  Div.  121,  92 
N.  Y.  Supp.  253. 

12.  Duty   to   stop.— Christy   v.   Elliott,    216   111.   31,   1   L.   R.   A. 
(N.  S.)    124,  74  N.  E.  Rep.  1035. 

13.  When  motorist  sbonld  stop. — Christy  v.  Eliott,  216  111.  31, 
45,  1  L.  R.  A.  (N.  S.)  124,  74  N.  E.  Rep.  1035. 


88  THE  LAW  OF  AUTOMOBILES. 

machine,  and  ran  down  by  gravity,  at  a  speed  of  three  or 
four  miles  an  hour,  passing  the  team  five  or  six  feet  from 
it,  without  stopping,  though  just  as  he  was  opposite  it  the 
horse  swerved  and  threw  the  plaintiff  out ;  the  horse  till 
then  having  given  no  sign  of  restiveness,  and  the  plaintiff 
having  given  the  defendant  no  signal  to  stop."  Of  course 
those  persons  using  horses  which  they  know  to  be  unman- 
ageable may  be  liable  for  contributory  negligence  and  so 
lose  their  right  of  action. 

§  3-  The  law  of  the  road— In  general. 

A  highway  is  for  the  use  of  the  public  at  large;  indeed 
it  has  been  defined  to  be  a  road  which  every  citizen  has  a 
right  to  use.  This  being  so,  it  is  necessary  that  the  travel 
and  traffic  on  the  highway  shall  be  governed  by  certain 
laws  that  the  rights  of  each  citizen  may  be  certain  of  pro- 
tection. The  rules  by  which  travel  on  highways  are  gov- 
erned in  English  speaking  countries  are  called  "  The  law 
of  the  road.^^     These  rules  were  established  by  custom  in 

14.  Negligence.— Davis  v.  Maxwell,  108  App.  Div.  128,  96  N.  Y. 
Suppl.  (130  St.  Rep.)  45,  holding  that  where  the  court  instructed 
that  if  the  defendant  drove  his  machine  down  toward  the  plain- 
tiff at  the  speed  and  in  the  threatening  manner  claimed  by  the 
plaintiff  the  jury  might  determine  whether  the  defendant  was  negli- 
gent, but  did  not  instruct  as  to  how  they  should  consider  the  de- 
fendant's conduct  if  he  passed  as  he  testified,  a  new  trial  should 
be  granted;  an  inference  of  negligence  not  being  authorized  from  the 
manner  of  passing  testified  to  by  defendant,  and  it  being  likely  that 
the  jury  concluded  that  though  he  passed  as  he  testified  he  was 
negligent  in  passing  without  stopping  and  nearer  than  necessary. 
See  Harris  v.  Nubbs,  L.  R.  3  Exch.  Div.  268,  273. 

15.  TTie  law  of  the  road. — Angell,  Highways,  sec.  2. 

"  The  fundamental  idea  of  a  highway  is  not  only  that  it  is  public 
for  free  and  unmolested  passage  thereon  by  all  persons  desiring  to 
use  it, — all  the  inhabitants  of  the  said  township,  and  of  all  other 
good  citizens  of  the  commonwealth  going,  returning,  passing  and 
repassing,  in,  along,  and  through  the  highway.    The  use  of  a  highway 


OPERATION  ON  HIGHWAY— IN  GENERAL.  89 

England,^®  and  so  were  they  established  in  this  country, 
for,  although  a  number  of  states  have  statutes  prescribing 
these  rules,  these  statutes  are  for  the  most  part  merely 
declarative  of  what  had  already  become  an  established 
custom. ^"^  Proof  of  the  custom  is  not  necessary,  for  the 
court  will  take  judicial  notice  of  its  existence.^^ 

§  4.  Vehicles  meeting  and  passing. 

The  first  and  not  the  least  important  class  of  cases  to 
which  the  law  of  the  road  applies  is  where  two  vehicles 
approach,  meet,  and  pass  one  another  on  the  highway.  In 
England  and  Canada  the  primary  rule  is  that  when  two 
vehicles  meet  each  should  keep  to  the  left.  In  this  coun- 
try the  universal  rule  is,  as  every  one  knows,  that  each 
of  two  vehicles  which  meet  should  keep  to  the  right. ^^ 
Custom  in  this  country  generally  requires  that  each  of  two 
vehicles  approaching  and  meeting  should  pass  on  the  right 
of  the  center  of  the  traveled  portion  of  the  highway,^*^  or 
at  least  to  keep  sufficiently  to  the  right  to  afford  a  safe  and 
free  passage  to  the  other  vehicle.^  ^     This  rule  has  been 


is  not  a  privilege,  but  a  right,  limited  by  the  rights  of  others  and 
to  be  exercised  in  a  reasonable  manner."  Radnor  Tp.  v.  Bell,  27 
Pa.  Super.  Ct.  1,  5. 

16.  Origin  of  law. — Angell,  Highways,  sec.  333. 

17.  Statutes  declaratory. — Elliott,  Roads  and  Streets,  (2d  ed.) 
sec.  828. 

18.  Judicial  notice. — Elliott,  Roads  and  Streets,  (2d.  ed.)  sec. 
830. 

19.  Keeping  to  right. — Angell,  Highways,  sec.  328;  Palmer  v. 
Baker,  11  Me.  338;  Jaquith  v.  Richardson,  8  Met.  (Mass.)  213;  Eas- 
ring  V.  Lansingh,  7  Wend.  (N.  Y.)  185;  Smith  v.  Dygert,  12  Barb. 
(N.  Y)  613. 

20.  Keeping  to  right  of  traveled  highway. — Cooley,  Torts,  p. 
666. 

21.  Safe  paisage  of  Tehicles. — Wilson  T.  Rockland,  2  Harr. 
(Del.)   67. 


90  THE  LAW  OF  AUTOMOBILES. 

enacted  by  statute  in  many  states,  the  usual  requirement 
being  to  turn  to  the  right  of  the  center  of  tlie  road.--  The 
phrase  "  center  of  the  road,"  as  used  in  these  statutes,  has 
been  held  to  mean  the  center  of  the  traveled  or  wrought 
part  of  the  road.^^  When  the  highway  is  covered  by  snow, 
travelers  w-ho  meet  must  turn  to  the  right  of  the  beaten  or 
traveled  part  of  the  road  since  it  was  covered  by  snow, 
irrespective  of  the  position  of  what  is  the  wrought  or 
traveled  part  of  the  road  when  not  covered  by  snow.-* 
This  rule  to  turn  to  the  right  of  the  center  of  the  road  ap- 
plies to  vehicles  passing  on  the  same  side  of  roads  and 
streets  which  are  so  wide  that  to  pass  safely  there  is  no 
necessity  to  turn  to  the  right  of  tlie  center  line.^^  The 
statutes  usually  require  that  vehicles  which  meet  on  the 
highway  shall  seasonably  turn  to  the  right.-^    This  require- 

22.  Turn  to  right  of  center  of  road. — See  for  example. — Cal. 
Pol.  Code,  sec.  2931;  Diehl  v.  Roberts,  134  Cal.  164,  66  Pac.  202; 
111.  Rev.  St..  ch.  121,  sec.  77;  Dunn  v.  Moratz,  92  111.  App.  277;  Mass. 
Pub.  St.,  ch.  93,  sec.  1;  New  York  Highway  Law,  sec.  157  (2  Birdseye 
Sts.  1638);  Wright  v.  Fleischman,  41  Misc.  533,  85  N.  Y.  Suppl. 
62. 

A  statute  requiring  the  turning  to  the  right  of  the  center  of  the 
road  is  only  a  recognition  of  the  common-law  rule  of  the  road, 
which  would  exist  without  statutory  enactment.  Wright  v.  Fleisch- 
man, 41  Misc.  533,  85  N.  Y.  Suppl.  62. 

23.  Center  of  road.— Clark  v.  Com.,  4  Pick.  (Mass.)  125.  See, 
however,  Daniel  v.  Clegg,  38  Mich.  32,  holding  that  the  phrase 
"  traveled  part  of  the  road  "  in  such  a  statute  means  that  part  which 
is  wrought  for  traveling,  and  is  not  confined  simply  to  the  most 
traveled  wheel  track. 

24.  'When  highveay  is  covered  xvith  snow. — Jacquith  V.  Rich- 
ardson, 8  Mete.  (Mass.)  213;  Smith  v.  Dygert,  12  Barb.  (N.  Y.) 
613. 

25.  Applicability  of  rnle.— Wright  v.  Fleischman,  41  Misc.  533, 
85  X.   Y.   Suppl.   62. 

26.  Seasonably  tnrm  to  right. — See  for  example  III.  Rev., 
Sts.,  ch.  121,  sec.  77;  Cal.  Pol.  Code.  sec.  2931;  N.  Y.  Highway  Law, 
sec.  157  (2  Birdseye  Sts.  1644). 


OPERATION  ON  HIGHWAY— IN  GENERAL.  91 

ment  has  been  held  to  mean  that  each  should  turn  to  the 
right  in  such  season  that  neither  shall  be  retarded  by  reason 
of  the  other's  occupying  his  half  of  the  way.^^  It  has  been 
held  that  it  is  not  necessary  for  a  person  to  turn  to  the  right 
so  that  all  of  his  vehicle  is  on  the  right  of  the  center  of  the 
highway.  If  he  turns  out  far  enough  so  that  another 
vehicle  may  pass  safely  without  turning  out  at  all,  the 
statute  has  been  sufficiently  complied  with.^® 

§  5-  Rnle  not  inflexible,  but  is  a  mle  of  negligence. 

Properly  considered,  the  rule  of  the  road  is  a  rule  of 
negligence,  and  the  fact  that  a  person  was  on  the  wrong 
side  of  the  road  when  a  collision  took  place  does  not  per  se 
make  him  liable  for  damages,  but  his  liability  is  determined 
by  the  rules  of  law  applicable  to  cases  of  negligence.^^  The 
rule  is  not  an  inflexible  one,  and  a  deviation  therefrom  is 
often  proper  and  sometimes  necessary,^^  and  a  too  rigid 
adherence  to  the  rule,  when  injury  might  have  been  averted 
by  variance  therefrom,  may  render  a  traveler  liable.^^  A 
deviation  from  the  rule  is  often  necessary  in  the  crowded 


27.  Meaning  of  rule.— Neal  v.  Randall,  98  Me.  69,  56  Atl.  209, 
63  L.  R.  A.   668. 

28.  Compliance  with  statute. — Buxton  V.  Ainsworth,  (Mich.) 
101   N.  W.  817,  11  Det.  Leg.  N.   684. 

29.  Negligence.— Neal  v.  Randall,  98  Me.  69,  56  Atl.  209,  63  L. 
R.  A.  668;  Palmer  v.  Barker,  11  Me.  338;  Parker  v.  Adams,  12  Mete. 
(Mass.)    416;    Brooks  v.  Hart,  14  N.  H.  307. 

30.  Rnle  not  inflexible. — Turley  v.  Thomas,  8  Carr.  &  Payne 
103. 

Custom  requires  a  vehicle  to  keep  to  the  right  unless  circum- 
stances require  it  to  go  to  the  left.  Lee  v.  Foley,  113  La.  663,  37 
So.  594. 

31.  Johnson  v.  Small,  5  B.  Mon.  (Ky.)  25;  Smith  v.  Gardner,  11 
Gray  (Mass.)  418;  Brooks  v.  Hart,  14  N.  H.  307;  O'Malley  v.  Dorn, 
7  Wis.  236;  Allen  v.  Mackay,  1  Sprague  (U.  S.)  219;  The  Com- 
merce, 3  W.  Rob.  295. 


92  THE  LAW  OF  AUTOMOBILES. 

Streets  of  a  metropolis,  ^^  and  it  has  been  held  that  when  a 
light  vehicle  meets  and  passes  one  heavily  laden  it  should 
yield  to  the  heavier  vehicle, ^^  which  however,  ought  to 
stop,  if  reasonable  care  requires  it,  to  give  the  lighter 
vehicle  opportunity  to  pass.^*  Moreover  it  is  self-evident 
that  a  vehicle  may  occupy  any  part  of  the  road  so  long  as 
that  particular  portion  is  not  being  used  by  another;  ^^  but  it 
is  equally  clear  that  a  person  who  has  his  vehicle  in  that  situ- 
ation is  bound  to  use  more  care  and  caution  against  collision 
with  any  other  vehicle  he  may  chance  to  meet  than  if  he 
were  pursuing  his  course  according  to  the  law  of  the 
road,^^  and  when  the  other  vehicle  approaches,  he  must,  at 
least  in  the  great  majority  of  cases,  seasonably  turn  to  his 
own  side  of  the  road ;  ^'^  for  in  taking  the  wrong  side  of  the 
street  he  might  generally  be  held  to  have  assumed  the  risk 
of  consequences  which  may  rise  from  his  inability  to  get 
out  of  the  way  of  a  vehicle  on  the  right  side  of  the  street, 
and  is  responsible  for  injuries  sustained  by  the  latter  while 
exercising  due  care.^** 

§  6.  Presumption  arising  from  disobedience. 

If,  however,  a  collision  take  place,  the  presumption  is 
against  the  person  on  the  wrong  side  of  the  road,^^  and  his 

32.  Deviation   from   rule. — Wayde   v.   Carr,   2   Dow.   &  Ry.   255. 
Greater  care  required  of  driver  on  the  wrong  side  of  the  road. 

N.  Y.  Transp.  Co.  v.  Garside,  157  Fed.  Rep.  521. 

33.  Heavy  vehicles. — See  Lee  v.  Foley,  113  La.  663,  37  So.  594. 

34.  Kennard  v.  Burton,  25  Me.  39,     43  Am.  Dec.  249. 

35.  Parker  v.  Adams,  12  Mete.    (Mass.)    403;   Daniel  v.  Clegg,  38 
Mich.  32. 

36.  Pleickwell  v.  Wilson,  5  Carr.  &  Payne,  103. 

37.  Parker  v.  Adams,  12  Mete.   (Mass.)    403;    Daniel  v.  Clegg,  38 
Mich.  32. 

38.  Reaponiibility   for  being   on   w^rong   side   of   road. — Fahf- 
ney  v.  O'Donnell,  107  111.  App.  608. 

39.  Presumption. — Cooley,    Torts,    p.    666;    Daniels   v.   Clegg,    28 
Mich.    32;    Brooks   v.    Hart,    14    N.    H.    307;    Buxton    v.   Ainsworth, 


OPERATION  ON  HIGHWAY-IN  GENERAL.  93 

traveling  thus  contrary  to  the  law  is  prima  facie  evidence 
of  negligence  on  his  part,^^  especially  if  the  accident  happen 
in  the  dark.^^  The  presumption  is  not,  however,  conclu- 
sive.^^ If  it  be  overcome  by  evidence  of  these  circum- 
stances, or  if  it  appear  that  the  fault,  if  found,  did  not 
essentially  contribute  to  the  injury  in  question,  the  fact  that 
the  traveler  may  have  been  in  a  sense  out  of  place  does  not 
place  him  beyond  the  protection  of  the  law.^^  Thus,  if  one 
is  obliged  by  reason  of  an  obstacle  in  the  road  to  go  to  the 
wrong  side  of  the  highway  and  his  vehicle  collides,  without 
his  fault,  with  that  of  another,  there  is  no  liability  as  against 
him  who  took  the  wrong  side  of  the  road.^^ 

§  7.  Where  one  traveler  overtakes  and  passes  another. 

In  England  the  traveler  who  overtakes  and  passes  an- 
other must  pass  on  the  off  side  of  the  forward  traveler, 
who  should,  at  the  same  time,  go  to  the  left.    It  is  said  that 


(Mich.)  101  N.  W.  817,  818,  11  Det.  Leg.  N.  684;  Perlstein  v.  Ameri- 
can Export  Co.  177  Mass.  730,  59  N.  E.  194,  holding  that  evidence 
that  plaintiff  was  not  on  the  right  side  of  the  street,  close  to  the 
sidewalk,  and  that  the  other  vehicle  was  going  very  fast  in  the 
opposite  direction  when  the  collision  took  place  was  suflBcient,  when 
unexplained,  to  indicate  negligence. 

40.  Prima  facia  negligence. — Steele  v.  Burkhardt,  104  Mass. 
59;  Spofford  v.  Harlow,  3  Allen  (Mass.)  176;  Burdick  v.  Worrall,  4 
Barb.  596.  See,  however.  Foot  v.  American  Produce  Co.,  195  Pa. 
190,  49  L.  R.  A.  764,  holding  that  a  city  ordinance  requiring  a  vehicle 
to  travel  on  the  right  side  of  the  street  could  be  considered  with 
other  evidence,  but  that  in  itself  it  was  not  sufl5cient  evidence  of 
negligence  of  one  going  on  the  other  side. 

41.  Accident  in  dark.— Angell  v.  Lewis,  20  R.  I.  391,  39  Atl. 
521. 

42.  Riepe  v.  Siting,  89  Iowa  82,  56  N.  W.  285,  26  L.  R.  A.  769. 

43.  Buxton  v.  Ainsworth,  (Mich.)  101  N.  W.  817,  818,  11  Det. 
Leg.  N.  684. 

44.  Compelled  to  travel  on  xirrong  side. — Strouse  V.  Whittle- 
sey, 41  Conn.  559. 


94  THE  LAW  OF  AUTOMOBILES. 

in  tliis  country  tliere  is  no  rule  regulating  how  the  over- 
hauling vehicle  should  pass  the  one  in  front. "'^  It  is  doubt- 
ful, however,  if  it  can  be  said  that  there  is  no  rule  fixing  a 
way  the  following  vehicle  should  pass  the  one  ahead.  It  is 
customary  in  many  parts  of  the  country  for  the  vehicle  in 
the  rear  to  pass  on  the  left  side;  that  is,  just  the  opposite 
from  the  English  rule ;  and  it  is  perfectly  apparent  that  this 
custom  is  dictated  by  common  sense.  This  has  been  recog- 
nized in  some  of  the  recent  automobile  laws.^'^  Neverthe- 
less it  has  been  held  that  the  law  of  the  road  applies  only  to 
travelers  who  approach  each  other  from  opposite  direc- 
tions,"*" and  that  the  advance  traveler  is  under  no  obligation 
to  turn  to  either  side  to  allow  the  following  traveler  to 
pass."*'^  In  Louisiana  it  has  been  held  that  the  driver  or 
owner  of  the  rear  vehicle  passes,  at  his  peril,  the  forward 
one,  and  is  responsible  for  all  damage  caused  thereby."*^ 
Even  though  there  may  be  a  set  rule  how  a  following  vehi- 
cle should  pass  the  one  in  front,  it  would  seem  that  such  a 
rule,  like  the  one  covering  vehicles  approaching  from  oppo- 
site directions,  will  be  merely  a  rule  of  negligence,  and  the 
liabilities  of  parties  would  be  subject  to  the  law  of  negli- 
gence. In  fact  it  has  been  held  that  the  driver  of  a  vehicle 
who  sees  a  team  on  the  run  overtaking  him,  but  not  having 
any  reason  to  believe  that  the  driver  had  lost  control  of  his 
team,  was  not  guilty  of  contributory  negligence  in  not  turn- 
ing out,  where  there  was  plenty  of  room  for  the  team  to 
pass.*^" 


45.  Angell,  Highways,  sec.  340. 

46.  See  N.  Y.  Automobile  I^w  of  1903. 

47.  Bolton  V.  Colder,  1  Watts   (Pa.)   360. 

48.  Bolton  V.  Colder,  1  Watts   (Pa.)   360. 

49.  Avegno  v.  Hart,  35  La.  Ann.  235. 

50.  Elenz  v.  Conrad,  123  Iowa  522,  99  N.  W.  138. 


OPERATION  ON  HIGHWAY— IN  GENERAL.  95 

§  8.  Collision— Contributory  negligence. 

As  in  other  cases  of  negligence,  a  traveler  injured  by  a 
collision  on  the  highway  must  be  free  from  contributory 
negligence,^  ^  and  where  a  suit  is  brought  plaintiff  must 
prove  both  care  on  his  part  and  want  of  care  on  the  part 
of  the  defendant.^^  Under  this  rule  it  has  been  held  that 
the  proof  of  unskilful  or  reckless  driving  will  prevent  plain- 
tiff's recovery  if  his  conduct  has  actually  contributed  to  the 
injury.^^  Furthermore,  it  is  clear  that  the  traveler  whose 
part  of  the  way  is  trenched  upon  by  another  cannot,  for 
that  reason,  carelessly  and  imprudently  rush  upon  the  other 
party,  or  his  vehicle,  and  if  he  sustain  an  injury  recover 
damages  therefor.  He  may  probably  attempt  to  pass  if 
such  attempt  would  be  reasonably  safe  and  prudent.  If 
otherwise,  he  must  delay,  and  seek  redress  for  the  detention 
if  damage  result  therefrom.^"*  But  no  negligence  on  plain- 
tiff's part  which  does  not  contribute  to  the  injury  will  pre- 
vent his  recovery.^^     Thus  negligence  of  the  driver  in  the 


51.  McLane  v.  Sharpe,  2  Harr.  (Del.)  481;  Larrabee  v.  Sewell, 
66  Me.  376;  Parker  v.  Adams,  12  Met.  (Mass.)  415;  Daniels  v.  Clegg, 
28  Mich.  32;  Wynn  v.  Allard,  5  Watts  &  S.  (Pa.)  524;  Wood  v. 
Luscomb,  23  Wis.  287;  Brooks  v.  Hart,  14  N.  H.  307;  Drake  v. 
Mount,  33  N.  J.  L.  441;  Moody  v.  Osgood,  54  N.  Y.  488;  Pluckwell  v. 
Wilson,  5  Car.  &  P.  375;  Williams  v.  Holland,  6  Car,  &  P.  23; 
Wayde  v.  Lady  Carr,  2  Dowl.  &  R.  255;  N.  Y.  Transp.  Co.  v.  Garside, 
157  Fed.  Rep.  521. 

52.  Kennard  v.  Burton,  25  Me.  39;  Carsley  v.  White,  21  Pick. 
(Mass.)  234;  Rathbun  v.  Payne,  19  Wend.  (N.  Y.)  399;  Butterfield 
V.  Boyd,  4   BlatcEf.    (U.   S.)    356. 

53.  Peoria  Bridge  Assoc,  v.  T-oomis,  20  111.  235;  Pittsburg  South- 
em  R.  Co.  V.  Taylor,  104  Pa.  306;  Acker  v.  Anderson  County,  20 
S.  C.  495;  Cassedy  v.  Stockbridge,  21  Vt.  391;  Flower  v.  Adam,  2 
Taunt.  314. 

54.  Brooks  v.  Hart,  14  N.  H.  307,  313. 

55.  Kennard  v.  Burton,  25  Me.  39;  Parker  v.  Adams,  12  Mete. 
(Mass.)  415;  Clay  v.  Wood,  5  Esp.  44;  Chaplin  v.  Hawes,  3  Car.  & 
P.  555;  Wayde  v.  Lady  Carr,  2  Dowl.  &  R.  255. 


96  THE  LAW  OF  AUTOMOBILES. 

management  of  his  vehicle  after  a  collision  caused  by 
defendant's  negligence  will  not  relieve  defendant  from 
liability,  unless  plaintiff's  act  actually  contributed  to  the 
result.'^^ 

§  9.  Rights  of  footmen  and  veMcles— Children  in  the  street. 

The  rights  of  footmen  and  drivers  in  the  highway  are 
equal  and  both  must  exercise  such  care  as  circumstances 
demand.^^  A  motorist  is  bound  to  anticipate  that  he  may 
meet  persons  at  any  point  in  a  public  street.  He  must, 
therefore,  keep  a  careful  lookout  for  them  and  have  his 
car  under  such  control  as  will  enable  him  to  avoid  injury 
to  any  one  and,  if  necessary,  he  must  slow  up  and  even 
stop.^®  An  adult  or  an  infant  has  the  right  to  assume  that 
the  operator  of  an  automobile  will  exercise  care  and  respect 
the  rights  of  pedestrians  when  there  is  occasion  to  turn  a 
corner.  Due  care  requires  in  such  circumstances  that  the 
vehicle  should  be  slowed  down  and  operated  with  care.  At 
such  a  place  the  operator  is  bound  to  take  notice  that  people 
may  be  at  the  crossing;  and  this  obligation  on  his  part  is 
one  which  a  pedestrian  has  a  right  to  assume  will  be  ob- 
served.^^  If  the  motorist  meets  children  of  tender  years  in 
the  street  he  is  required  to  exercise  more  than  ordinary 
care  to  avoid  accident.^*^  The  mere  fact  that  a  six-year-old 
boy,  run  over  by  a  motor  car,  was  found  in  the  street,  and 
played  on  the  street,  is  not  per  se  negligence  on  the  part  of 
his  parents,  but  whether  his  parents  were  negligent  is  a 
question  for  the  jury.®^     It  is  not  the  duty  of  a  driver  to 

56.  Helk  V.  People,  125  III.  584. 

57.  Footmen. — Elliott,  Roads  and   Streets,  sec.   834. 

58.  Thies  v.  Thomas,  77  N.  Y.   Supp.  276. 

59.  Buscher   v.    New   York   Transportation   Co.,    94    N.    Y.   Supp. 
798, 

60.  Thies  V.  Thomas.  77  N.  Y.  Supp.  276. 

61.  Thies  v.  Thomas,  77  N.  Y.  Supp.  276. 


OPERATION  ON  llKillWAY-IN  GENERAL.  97 

keep  a  lookout  behind  to  see  whether  children  are  climbing 
on  the  rear  of  his  vehicle.  It  is  his  duty  to  look  ahead.«2 
That  the  peculiarity  of  his  vehicle  excites  the  desire  of  chil- 
dren to  climb  upon  it  does  not  alter  the  case.^^  In  an  action 
for  the  death  of  a  boy  run  over  by  a  motor  car,  the  fact 
that  the  accident  did  not  happen  at  a  street  crossing-,  but  at 
a  point  between  blocks,  may  be  considered  by  the  jury  on 
the  issue  of  negligence.^^  It  must  affirmatively  appear  that 
plaintiff  was  not  guilty  of  contributory  negligence.^'^  In  an 
action  to  recover  for  the  death  of  a  six-year-old  boy,  it  is 
a  question  for  the  jury  whether  his  playing  on  the  street 
was  contributory  negligence.®^  If  an  automobile  comes 
upon  a  boy  in  such  a  way  as  to  produce  terror,  and  his  fear 
causes  an  error  of  judgment  by  which  he  runs  in  front  of 
the  automobile,  he  is  not  guilty  of  contributory  negligence.®'' 

§  10.  Injury  resulting  from  fright. 

In  an  ordinary  case  of  injury  through  the  reckless  driving 
of  an  automobile  on  the  highway,  the  rules  of  liability  are 
well  settled  and  comparatively  simple.  Let  us  suppose, 
however,  a  case  of  a  person  who  is  walking  on  the  street  or 
highway  and  a  motor  car  is  so  recklessly  driven  that  he, 
through  no  fault  of  his  own,  suffers,  from  fright,  a  severe 
nervous  shock  which  seriously  injures  him,  the  injury  being 
due  solely  to  the  fright  thus  caused,  not  to  any  immediate 
physical  injury  from  the  car.  Has  he  any  ground  for  re- 
covery? Very  high  American  authority,  followed  in  sev- 
eral States,  is  against  recovery  upon  these  facts.®^     This 

62.  Hebard  v,  Mabie,  98  HI.  App.  543. 

63.  Hebard  v.  Mabie,  98  III.  App.  543. 

64.  Thies  v.  Thomas,  77  N.  Y.  Supp.  276. 

65.  West  V.  New  York  Transportation  Co.,  94  N.  Y.  Supp.  426. 

66.  Thies  v.  Thomas,  77  N.  Y.  Supp.  276.  * 

67.  Thies  v.  Thomas,  77  N.  Y.  Supp.  276. 

68.  Mitchell  v.  Rochester  Ry.  Co.,  151  N.  Y.  107. 
7 


98  THE  LAW  OF  AUTOMOBILES. 

conclusion  was  reached  by  starting  with  the  sound  propo- 
sition that  damages  are  not  recoverable  for  mere  fright. 
"  Fear,"  says  Sir  Frederick  Pollock,  "  taken  alone  falls 
short  of  being  actual  damage,  not  because  it  is  remote  or 
unlikely  consequence,  but  because  it  can  be  proved  and 
measured  only  by  physical  efifect."  ^^  But  from  the  propo- 
sition that  recovery  could  not  be  had  for  fright  alone  the 
court  reasoned  that  no  recovery  can  be  had  for  injuries 
resulting  therefrom.  "  That  the  result  may  be  nervous 
disease,  blindness,  insanity,  or  even  a  miscarriage,  in  no 
way  changes  the  principle.  These  results  merely  show  the 
degree  of  fright  or  the  extent  of  the  damages.  The  right  of 
action  must  still  depend  upon  the  question  whether  recovery 
may  be  had  for  fright.  If  it  can,  then  an  action  may  be 
maintained,  however  slight  the  injury.  If  not.  then  there 
can  be  no  recovery,  no  matter  how  grave  or  serious  the 
consequences."  "^^  This  reasoning  has  been  criticised  and 
seems  to  have  been  overthrown  in  a  well-known  English 
case.''^  In  that  case  the  court  said  :  "  No  doubt  damage 
is  an  essential  element  in  a  right  of  action  for  negligence. 
I  cannot  successfully  sue  him  who  has  failed  in  his  duty 
of  using  reasonable  skill  and  care  towards  me  unless  I  can 
prove  some  material  and  measurable  damage.  If  his  negli- 
gence has  caused  me  neither  injury  to  property  nor  physical 
mischief,  but  only  an  unpleasant  emotion  of  more  or  less 
transient  duration,  an  essential  constituent  of  a  right  of 
action  for  negligence  is  lacking.  *  *  *  j^  may,  I  con- 
ceive, be  truly  said  that,  viewed  in  relation  to  an  action  for 
negligence,  direct  bodily  impact  is,  without  resulting  dam- 
age, as  insufficient  a  ground  of  legal  claim  as  the  infliction 


69.  Pollock,  The  I^w  of  Torts,  p.  51. 

70.  Mitfhell  v.  Rochester  Ry.  Co..  151  N.  Y.  107,  109.  110. 

71.  Dulien  v.  White,  2  K.  B.  CG9. 


OPERATION  ON  HIGHWAY— IN  GENERAL.  99 

of  fright.  That  fright — where  physical  injury  is  directly 
produced  by  it — cannot  be  a  ground  of  action  merely  be- 
cause of  the  absence  of  any  accompanying  impact  appears 
to  me  to  be  a  contention  both  unreasonable  and  contrary  to 
the  weight  of  authority.  *  *  *  jf^  as  must  be  assumed 
here,  the  fear  is  proved  to  have  naturally  and  directly  pro- 
duced physical  effects,  so  that  the  ill  results  of  the  negli- 
gence which  caused  the  fear  are  as  measurable  in  damages 
as  the  same  results  would  be  if  they  arose  from  an  actual 
impact,  why  should  not  an  action  for  those  damages  lie 
just  as  well  as  it  lies  where  there  has  been  an  actual  im- 
pact ?  '^  In  connection  with  the  compelling  reasoning  of 
the  English  court,  we  should  remind  ourselves  that  it  is 
settled  law,  as  we  have  already  seen,  that  if  a  horse  be 
frightened  by  the  negligent  operation  of  an  automobile  upon 
the  highway,  and  physical  injury  results  directly  from  the 
fright  of  the  horse,  a  good  cause  of  action  lies.  If  an 
action  lies  for  damages  resulting  from  the  fear  of  an  un- 
reasonable animal,  an  animal  without  a  grain  of  sense  when 
its  fear  is  aroused,  on  what  principle  can  we  say  that  dam- 
ages cannot  result  from  the  fear  of  an  individual?  Of 
course  not  every  shock  which  produces  physical  injury 
gives  cause  of  action  to  the  sufferer.  The  nervous  shock 
must  be  one  which  arises  from  a  reasonable  fear  of  imme- 
diate personal  injury  to  oneself  J^ 


72.  Dulien  v.  White,  2  K.  B.  669,  673,  675,  where  a  woman  who 
was  pregnant  was  sitting  behind  the  bar  of  the  public  house  of 
her  husband  and  a  pair-horse  van  was  driven  into  the  public  house 
and  she  sustained  a  severe  nervous  shock  and  gave  premature  birth 
to  the  child  she  had  been  carrying  and  the  child  born  was,  in 
consequence,  an  idiot. 

73.  Dulien  v.  White,  2  K.  B.  669,  675,  where  the  court  said:  "A. 
has,  I  conceive,  no  legal  duty  not  to  shock  B.'s  nerves  by  the  ex- 
hibition of  negligence  towards  C,  or  towards  the  property  of  B.  or 
C." 


100 


THE  LAW  OF  AUTOMOBILES. 


§  11.  Roadworthiness  of  vehicle,  tackle,  or  gearing. 

It  is  the  duty  of  a  motorist  to  have  *'  good  tackle  "  and 
gearing,  and  to  have  his  car  in  good  condition  for  the  road, 
that  he  may  thus  avoid,  as  much  as  possible,  the  chance  of 
causing  injury  to  others."^  The  mere  fact  that  some  of  the 
gearing  gave  way,  or  that  some  part  of  the  vehicle  broke 
down,  and  injury  resulted,  would  not  be  negligence  per 
jr."  "If  damages  are  inflicted  by  reason  of  the  breaking 
of  the  carriage  or  tackle  of  the  traveler  on  the  highway  the 
traveler  or  owner  of  the  tackle  is  liable  only  on  the  princi- 
ple of  want  of  ordinary  care."  '^^  The  fact  that  gearing  or 
tackle  acted  wrongly  on  a  previous  occasion  is  evidence  of 
negligence  on  the  part  of  the  owner,  and  may  be  sufficient 
to  render  him  liable  for  damages  caused  thereby.'' 

§  12-  Street  crossings,  crossroads. 

At  the  crossing  of  two  highways  travelers  on  both  roads 
or  streets  have  equal  rights,  and  each  traveler  is  bound  to 
exercise  ordinary  care  to  avoid  injury  to  others.'^  If  a 
person  injured  in  crossing  a  street  failed  to  exercise  ordi- 
nary care  and  prudence  for  his  own  safety,  it  is  neverthe- 
less proper  to  leave  to  the  jury  the  question  whether,  if  the 
driver  of  vehicle  by  which  he  has  been  injured  had  been 
watchful,  he  could  have  discovered  the  peril  to  which  plain- 
tiff was  exposed  in  time  to  have  avoided  injury.'* 


74.  Welch  V.  Lawrence,  2  Chitty  262;  Johnson  v.  Small,  5  B.  Men. 
(Ky.)  25;  Smith  v.  Smith,  2  Pick.  (Mass.)  621;  Murdock  v.  Warwick, 
4  Gray   (Mass.)   178. 

75.  Doyle  v.  Wragg,  1  F.  A  F.  7;  The  European,  10  L.  R.  Prob. 
Div.  99. 

76.  1  Thompson  Negligence,  p.  81.  See  also  Elliott,  Roads  and 
Streets. 

77.  The  European.  10  L.  R.  Prob.  Div.  99. 

78.  Gilbert  v.  Burque,  72  N.  H.  521.  57  Alt.  97. 

79.  Duter  v.  Sbaren,  81  Mo.  App.  612. 


OPERATION  ON  HIGHWAY— IN  GENERAL.  IQl 

§  13.  Vehicles  standing  on  the  highway. 

Under  many  circumstances  the  owners  of  vehicles  have 
the  right  to  let  them  stand  on  the  highway  for  a  reasonable 
time  and  in  such  a  place  as  will  not  unduly  interfere  with 
travel  on  the  road.  When,  therefore,  a  motor  car  is  law- 
fully standing  on  the  side  of  the  street  and  there  is  ample 
room  to  pass  without  colliding  with  it,  it  is  negHgent  to 
drive  into  it,^^  When,  however,  the  person  in  charge  of  a 
motor  car  leaves  it  upon  the  street  it  is  his  duty  to  take  all 
reasonable  care  that  no  injury  will  result  during  the  time 
the  machine  is  there,  especially  if  the  car  be  left  standing 
alone  with  no  person  in  charge  of  it.  It  is  not  his  duty  be- 
fore leaving  the  car  to  chain  it  to  a  post  or  in  some  manner 
to  fasten  it  so  that  it  would  be  impossible  for  it  to  be 
started  by  a  third  person.^^  If,  during  the  absence  of  the 
person  in  charge  of  the  car  and  after  he  had  turned  off  the 
power  and  applied  the  brake,  the  car  be  started  by  the  will- 
ful act  of  two  small  boys  and  collide  with  a  wagon,  the 
unauthorized  interference  and  act  of  the  boys  is  the  proxi- 
mate cause  of  the  injury  and  the  owner  of  the  car  is  not 
liable.s2 

§  14.  Liability  of  owner  for  acts  of  person  operating  car. 

Undoubtedly  the  owner  of  a  motor  car  is  liable  for  the 
acts  of  his  servant  who  is  managing  it  while  acting  as  an 
employee  and  within  the  scope  of  his  employment.  The 
owner  is  not,  however,  liable  where  the  proximate  cause  of 
the  injury  was  not  the  acts  of  his  servant,  but  the  inter- 
meddling of  a  third  person.^-'^    A  dealer  in  automobiles  can- 


80.  Odom  V.  Schmidt,  52  La.  Ann.  2129.  28  So.  350. 

81.  Berman  v.  Schultz,  84  N.  Y.  Supp.  292. 

82.  Berman  v.  Schultz,  84  N.  Y.  Supp.  292. 

83.  Berman  v.  Schultz,  84  N.  Y.  Supp.  292.    See  suppra,  eh.  VI., 
sec.  11. 


IQ2  THE  LAW  OF  AUTOMOBILES. 

not  be  held  liable  for  the  act  of  his  son  who  was  also  an 
employee,  but  not  acting  as  such  at  the  time,  and  who  was 
using  his  father's  car  without  the  latter's  consent  or  knowl- 
edge.^^ 

§  15-  Speed  regalations. 

An  act  regulating  the  speed  of  automobiles  is  not  uncon- 
stitutional as  class  legislation.^'  In  Pennsylvania  a  town- 
ship of  the  first  class  has  the  power,  under  the  act  of  April 
1 8,  1899,  P.  L.  104,  to  pass  an  ordinance  fixing  the  maxi- 
mum speed  of  motor  cars  at  ten  miles  an  hour,  and  the  power 
is  not  suspended  by  Act  of  April  23,  1903,  P.  L.  268.  which 
allows  motor  cars  to  maximum  speed  of  twenty  miles  an 
hour  outside  of  cities  and  boroughs.^°  In  Massachusetts 
the  Boston  park  commissioners  have  power  to  make  rules 
for  the  use  and  government  of  the  parkways  under  their 
control. ^'^  One  who  is  controlling  the  motive  power  of  an 
automobile  may  be  said  to  be  driving  it  within  the  meaning 
of  a  rule,  made  by  a  board  of  park  commissioners,  that  no 
person  shall  "  ride  or  drive  "  in  a  certain  parkway  at  a  rate 
of  speed  exceeding  eight  miles  an  hour.^®  Under  a  statute 
forbidding  the  driving  of  a  motor  car  at  any  speed  greater 
than  is  reasonable  and  proper,  having  regard  to  the  traflfic 
on  the  highway,  a  finding  that  a  speed  of  eighteen  miles  an 
hour  was  excessive  was  correct,  although  there  was  no  di- 
rect evidence  that  any  traffic  was  interrupted,  interfered 
with,  incommoded,  or  affected;  for  the  phrase  "having 
regard  to  the  traffic  on  the  highway  "  meant  having  regard 

84.  Reynolds  v.  Buck,   (Iowa)   103  N.  W.  946. 

85.  Christy  v.  Elliott,  216  111.  31,  1  L.  R.  A.  (N.  S.)  124,  74  N.  E. 
Rep.  1035  [construing  Act  of  May  13,  1903]. 

86.  Radnor  Tp.  v.  Bell,  27  Pa.  Super.  Ct.  1. 

87.  Com.  V.  Crowninshield,  17  Mass.  225. 

88.  Com.  V.  Crowninshield,  17  Mass.  225. 


OPERATION  ON  HIGHWAY— IN  GENERAL.  103 

to  the  traffic  on  the  road,  not  to  the  traffic  in  the  immediate 
vicinity  of  the  motor.*^  Upon  the  elementary  principle 
that  before  a  person  can  be  legally  convicted  of  a  crime  he 
is  entitled  to  be  informed  of  precisely  the  charge  made 
against  him,  a  conviction  of  the  violation  of  a  highway  law 
cannot  be  affirmed  on  the  ground  that  defendant  violated  a 
section  of  the  Penal  Code.^^ 


89.  Smith  v.  Boon,  84  L.  T.  593  [construing  The  Light  Locomotives 
on  Highways  Order,  art.  4].  See  also  Mayhew  v.  Sutton,  86  L.  T. 
18.  Other  cases  under  this  act  are  Rex  v.  Wells,  91  L.  T.  98; 
Throughton  v.  Manning,  92  L.  T.  855.  See  article  "  Prohibiting  Reck- 
less Motoring,"  Canadian  L.  Rev.,  February,  1906. 

90.  People  v.  Ellis,  N.  Y.  App.  Div.  471,  472.  The  following  were 
the  provisions  of  the  highway  law  in  question:  "  Section  163  and 
169a  of  the  Highway  Law  (Laws  of  1890,  ch.  568),  as  amended  by 
chapter  625  of  the  Laws  of  1903,  provided  as  follows: 

"  Sec.  163  .  .  .  No  ordinance,  rule  or  regulation  adopted  by  the 
authorities  of  any  city  in  pursuance  of  this  section  or  of  any  other 
law  shall  require  an  automobile  or  motor  vehicle  to  travel  at  a 
slower  rate  than  eight  miles  per  hour  within  the  closely  built  up 
portions  of  such  city,  nor  at  a  slower  rate  of  speed  than  fifteen  miles 
per  hour  where  the  houses  in  such  city  upon  any  highway  are  more 
than  one  hundred  feet  apart.  .  .  . 

"  Sec.  169a.  .  .  .  Any  person  who  shall  violate  any  of  the  pro- 
visions of  this  statute,  or  of  any  speed  ordinance  adopted  pursuant 
hereto,  upon  conviction  thereof,  shall,  in  addition  to  the  penalties 
provided  in  section  one  hundred  and  sixty-nine  h,  be  further  punished 
for  a  first  offense  by  a  suspension  of  his  right  to  run  an  automobile  for 
a  period  of  not  less  than  two  weeks." 

It  was  held  that  such  sections  of  the  Highway  Law  do  not  purport 
to  fix  a  rate  of  speed  or  make  it  a  crime  to  exceed  any  particular 
rate,  but  that  they  simply  operate  to  prevent  the  authorities  of  a 
city  from  fixing  a  lower  rate  of  speed  for  automobiles  than  eight 
miles  an  hour. 

That  an  information  which  states  that  defendant  propelled  an 
automobile  through  the  closely  built  portion  of  the  city  of  New  York 
at  a  speed  of  eighteen  miles  an  hour  is  not  permitted  by  any 
ordinance  of  said  city,  "  wherefore,  deponent  charges  defendant  with 
having  violated  chapter  625  of  the  Laws  of  1903,"  does  not  charge 
the  commission  of  a  crime. 


104  THE  LAW  OF  AUTOMOBILES. 

§  16.  Injuries  resulting  from  defects  in  highway. 

In  practically  all  of  the  states  the  municipalities  and  towns 
or  townships  are  made  responsible  for  injuries  resulting 
from  the  unsafe  condition  of  the  highway.  The  liability  is 
usually  prescribed  by  statute,  and  the  extent  of  liability  is 
defined  by  the  statute  creating  it.  Where  a  statute  provides 
that  highways  shall  be  kept  in  a  reasonably  safe  condition 
for  travelers  with  horses,  teams,  and  carriages,  the  word 
"  carriages  "  includes  motor  cars  or  automobiles.^^  It  has 
been  held  that  in  an  action  for  injuries  from  a  defect  in  the 
highway  the  question  was  not  whether  the  town  used  ordi- 
nary care  in  construction  and  repair  of  its  highway,  but 
whether  as  a  result  the  road  as  constructed  and  maintained 
was  in  fact  reasonably  safe  for  travelers.^^  But  the  duty  of 
a  municipality  to  keep  its  highways  in  a  reasonably  safe 
condition  does  not  include  the  providing  against  insufficiency 
caused  by  extraordinary  events.^^ 

?  17.  Care  in  avoiding  defects— Contrihutory  negligence. 

A  person  in  charge  of  a  vehicle  must  use  ordinary  care 
to  avoid  injury  from  any  defect  in  the  highway.  Ordinary 
care  is  such  care  as  prudent  men  ordinarily  use  in  like  cir- 
cumstances, taking  into  consideration  the  time,  place,  condi- 
tion of  the  highw-ay,  possible  dangers,  known  obstructions, 
and  the  damage  likely  to  result  from  driving  carelessly  at 
that  particular  time  and  place.^*  Therefore  it  has  been  held 
that  when  a  highway  is  of  reasonable  width  and  smooth- 


91.  Baker  v.  Fall  River,  (Mass.)  72  N.  E.  336. 

92.  Moriarity  v.  Lewiston,  98  Me.  482.  57  Atl.  790.  See  Cunning- 
ham V.  Clay  Tp..  76  Pac.  (Kan.)  907.  holding  that  it  is  not  a 
sufficient  defense  to  show  that  the  township  officers  have  used 
ordinary  care  to  prevent  the  defect  on  which  the  action  is  based. 

93.  Schrunk  v.  St.  Joseph,  (Wis.  1904)  97  N.  W.  946. 

94.  Ford  v.  Whitman,  (Del.  Super.  1899)  45  Atl.  543. 


OPERATION  ON  HIGHWAY— IN  GENERAL.  105 

ness  a  person  who  drives  outside  such  a  way  assumes  the 
risk.^^    In  many  states  want  of  contributory  neghgence  on 
the  part  of  the  owner  or  of  the  driver  must  be  affirmatively 
shown.^*'     Likewise  it  is  the  duty  of  a  passenger  when  he 
has  an  opportunity  to  do  so,  as  well  as  the  driver,  to  learn 
of  any  danger  in  the  highway  and  avoid  it  if  possible.^^ 
mere  knowledge  of  the  defective  condition  of  the  road  does 
not  preclude  recovery  if  the  injured  party  used  due  care 
according  to  the  danger  which  existed.^^     And  although  it 
be  the  duty  of  the  driver  to  look  where  he  is  going,  yet  it 
cannot  be  laid  down  as  an  inflexible  and  unvaried  rule  of 
law  that  he  must  keep  his  eyes  constantly  fixed  on  the  road- 
bed, and  is  affected  with  notice  of  every  defect  therein, 
great  or  small,  which  can  be  detected  by  doing  so.^^     In 
considering  the  question  of  due  care  the  jury  may  keep  in 
mind  the  "  Law  of  the  Road  "  when  it  appeared  the  plain- 
tiff went  to  the  right  side  of  the  road  to  avoid  some  work- 
men, when  the  left  side  afforded  a  better  way,  and  this 
although   there   was   no    other  vehicle   in   the   immediate 
vicinity.  ^*^*^ 

§  18.  Notice  of  defects— Notice  of  accident. 

In  many  states  no  recovery  can  be  had  of  a  township  or 
a  municipality  for  injury  from  a  defective  highway,  unless 
the  township  or  municipality  can  be  said  to  have  had  notice 
of  the  defect  from  which  the  injury  resulted;  and  in  some 
states  the  notice  must  be  actual  notice,  not  notice  inferable 


95.  Orr  v.  Oldtown,  99  Me.  190,  58  Atl.  984. 

96.  Orr  v.  Oldtown,  99  Me.  190,  58  Atl.  914. 

97.  Whitman  v,  Fisher,  98  Me.  575,  57  Atl.  895. 

98.  Gardner  v.  Wasco  County,   (Ore.  1900)   61  Pac.  834,  rehearing 
denied,  62  Pac.  753. 

99.  Smith  v.  Jackson  Tp.,  26  Pa.  Super.  Ct.  234. 

100.  Baker  v.  Fall  River,  (Mass.)  72  N.  E.  336. 


106  THE  LAW  OF  AUTOMOBILES. 

from  the  notoriety  or  long  continuance  of  the  defect  in 
question. ^"^^  If  the  chairman  of  the  selectmen  and  super- 
intendent of  streets  has  knowledge  of  the  defect  it  is  proper 
to  find  that  the  town  was  charged  with  notice. ^"^  In  many- 
states  it  is  necessary  to  file  a  notice,  within  a  specified  time, 
of  an  accident  from  a  defect  in  the  highway  w'ith  an  officer 
of  the  town,  township,  or  municipality  in  which  the  injury 
was  received.  The  requirements  of  such  notice  vary  with 
different  jurisdictions,  but  they  must  in  all  cases  be  sub- 
stantially complied  with.^^^ 

101.  Hair  v.  Ohio  Tp.,  (Kan.  1900)  62  Pac.  1010  [construing  Gen. 
Sts.  1899,  ch.  16,  sec.  317]. 

102.  Pratt  V.  Inhabitants  of  Cohasset,  177  Mass.  488,  59  N.  E,  79. 

103.  Dean  v.  Sharon,  72  Conn.  667,  45  Atl.  963;  Joy  v.  Inhabitants 
of  York,  99  Me.  237,  58  Atl.  1059;  Garske  v.  Ridgeville,  (Wis.)  102 
N.  W.  22. 


CHAPTER  Vn. 

RIGHTS,  DUTIES   AND   LIABILITIES    OF  AUTOMOBILE 
DRIVERS. 

Sec.  1.  General  duties  of  drivers. 

2.  Reasonable  care  expected  from  all. 

3.  Due  care  in  driving. 

4.  Care  in  avoiding  injury. 

5.  Reciprocal  rights  and  duties. 

6.  Operation  of  traction  engines. 

7.  Driving  on  crowded  streets. 

8.  Unavoidable  accidents. 

9.  Negligence  must  be  shown. 

10.  Prima  facie  evidence  of  negligence. 

11.  Drivers  must  anticipate  danger. 

12.  Vehicles  left  standing  at  night. 

13.  Towing  automobiles. 

14.  Negligence. 

15.  Evidence  of  due  care. 

16.  Skidding. 

17.  Thoughtless  inattention. 

18.  Legal  status  of  guest. 

19.  Imputed  negligence. 

§  1.  General  duties  of  drivers= 

The  driver  of  a  vehicle  is  bound  to  use  reasonable  care 
and  to  anticipate  the  presence  on  the  street  of  other  persons 
having  an  equal  right  with  himself  to  be  there. — Geiselman 
V.  Schmidt,  68  Atl.  Rep.  202.  The  Supreme  Court  of  the 
State  of  Connecticut  in  a  decision  just  handed  down  makes 

[107] 


108  THE  LAW  OF  AUTOMOBILES. 

some  observations  regarding  the  duties  of  motorists  that  are 
of  considerable  importance  to  all  who  drive  cars. 
The  opinion  says : 

"  To  persons  riding  along  or  crossing  our  public 
roads,  and  especially  our  city  streets,  the  rapidly  mov- 
ing automobile  is  a  source  of  constant  danger.  Their 
great  weight  and  speed  power  and  resulting  momentum 
render  the  consequences  of  a  collision  with  them  much 
more  serious  than  with  ordinary  carriages  even  mov- 
ing at  a  higher  rate  of  speed,  and  it  is  much  more  diffi- 
cult to  avoid,  and  much  more  confusing  to  attempt  to 
avoid,  the  rapidly  moving  automobile  than  the  street 
railway  car,  which  has  a  fixed  and  known  direction 
and  course  upon  the  tracks. 

"  While  owners  of  automobiles  have  the  right  to 
drive  them  upon  public  streets,  yet  the  proper  protec- 
tion of  the  equal  rights  of  all  to  use  the  highways  nec- 
essarily requires  the  adoption  of  different  regulations 
for  the  different  methods  of  such  use;  and  what  may 
be  a  safe  rate  of  speed  at  which  to  ride  a  bicycle  or 
drive  a  horse  may  be  an  unreasonably  rapid  rate  at 
which  to  drive  an  automobile  in  the  same  place.  For 
the  reasons  stated,  and  others  which  might  be  given, 
driving  of  an  automobile  at  a  high  rate  of  speed 
through  city  streets  at  times  when  and  places  where 
other  vehicles  are  constantly  passing,  and  men,  women 
and  children  are  liable  to  be  crossing;  around  corners 
at  the  intersection  of  streets,  or  in  passing  street  cars 
from  which  passengers  have  just  alighted,  or  may  be 
about  to  alight ;  or  in  other  similar  places  and  situa- 
tions where  people  are  liable  to  fail  to  observe  an  ap- 
proaching automobile,  the  driver  is  bound  to  take  notice 
of  the  peculiar  danger  of  collisions  in  such  places.  He 
cannot  secure  immunity  from  liability  by  merely  sound- 


DUTIES  AND  LIABILITIES  OF  AUTOMOBILE  DRIVERS.    109 

ing  his  automobile  horn.  He  must  run  his  car  only  at 
such  speed  as  will  enable  him  to  timely  stop  it  to  avoid 
collisions.  If  he  fails  to  do  so,  he  is  responsible  for 
the  damage  he  thereby  causes."  See  Irwin  v.  Judge, 
71  Atl.  Rep.  573. 

§  2.  Reasonable  care  expected  from  all. 

A  traveler  upon  the  public  highway  has  a  right  to  assume 
within  reasonable  limits  that  others  using  it  will  exercise 
reasonable  care. — Indianapolis  St.  Ry.  v.  Hoffman,  82  S.  E. 
Rep.  543. 

§  3.  Due  care  in  driving. 

A  driver  of  a  vehicle  in  a  street  must  exercise  care  to 
prevent  reaching  a  point  from  which  he  is  unable  to  extri- 
cate himself  without  colliding  with  another  vehicle,  and, 
omitting  such  duty,  the  greatest  vigilance  on  his  part  when 
the  danger  arises  will  not  avail  him. — Altenkirck  v.  National 
Biscuit  Company,  iii  N.  Y,  S.  284. 

§  4-  Care  in  avoiding  injury. 

In  an  action  for  injuries  sustained  by  the  plaintiff,  owing 
to  her  horse  having  become  frightened  by  the  defendant's 
automobile  when  the  defendant  was  attempting  to  pass  the 
plaintiff  on  the  road,  it  was  incumbent  on  the  plaintiff  to 
show  that  she  used  ordinary  care  to  avoid  being  injured. — 
Nadeau  v.  Sawyer,  59  At.  Rep.  369 ;  73  N.  H.,  70. 

§  5.  Reciprocal  rights  and  duties. 

A  person  with  a  horse  and  wagon,  and  a  person  with  an 
automobile,  each  has  a  right  to  use  the  highways  with  his 
respective  vehicle,  but  it  is  the  duty  of  each  to  exercise  his 


110  THE  LAW  OF  AUTOMOBILES. 

right  with  due  regard  to  the  corresponding  rights  of  the 
other.^ 


1.  Noise. — The  noise  incident  to  the  operation  of  an  automobile  in 
a  highway  are  not  of  themselves,  evidence  of  negligence. — House 
V.  Cramer.  112;   N.  W.  Rep.,  3. 

There  can  be  no  recovery  for  injury  resulting  from  ordinary 
noises,  or  from  appearance  of  an  automobile  which  was  not  being 
run  at  an  excessive  rate  of  speed. — Eichman  v.  Buchhiet,  128  Wis. 
3S5. 

Traveling  on  bridges. — It  is  the  duty  of  one  approaching  a  draw- 
bridge to  stop,  look  and  listen.  In  an  action  against  a  county  for 
the  death  of  decedent  through  driving  off  an  open  drawbridge  at 
night,  the  evidence  was  held  to  show  that  the  deceased  was  guilty 
of  contributory  negligence. — Comm.  v.  State,  68  Atl.  Rep.  602. 

Care  required  of  operators  of  automobiles. — The  operation 
of  an  automobile  upon  the  crowded  streets  of  a  city  necessitates 
exceeding  carefulness  on  the  part  of  the  driver.  Moving  quietly  as  it 
does,  without  the  noise  which  accompanies  the  movements  of  a  street 
car  or  other  ordinary  heavy  vehicle,  it  is  necessary  that  caution 
should  be  continuously  exercised  to  avoid  collisions  with  pedestrians 
unaware  of  its  approach.  The  speed  should  be  limited,  warnings 
of  approach  given,  and  skill  and  care  in  its  management  so  exer- 
cised as  to  anticipate  such  collisions  as  the  nature  of  the  machine 
and  the  locality  might  suggest  as  liable  to  occur  in  the  absence  of 
such  precautions.  The  pedestrian  also  must  use  such  care  as  an 
ordinary  prudent  man  would  use  under  like  circumstances.  Lampe 
V.  Jacobson,  90  Pac.  Rep.  655. 

Damages. — Where  the  plaintiff's  automobile,  while  standing  in 
a  proper  place  along  the  street,  was  struck  and  damaged  by  a  ladder 
projecting  from  the  defendant's  wagon,  because  of  the  defendant's 
driver  swerving  his  hor.se  so  as  to  bring  the  ladder  in  contact  with 
the  machine,  the  plaintiff  was  held  to  be  entitled  to  recover. — Denny 
V.  Strauss  &  Co.,  109  N.  Y.  Supp.,  20. 

Estimated  future  profits  cannot  be  recovered. — Jimeney  V. 
San  .luan  Lisht  &  Transit  Co.,  3  Porto  Rico  Rep.  178. 

Reasonable  care. — One  using  the  highway  with  an  automobile 
must  exercise  reasonable  care  to  prevent  injury  to  others. — Fletcher 
V.  Dixon,  68  Atl.  Rep.  875. 

One  undertaking  to  pass  another  on  a  highway  going  in  the  same 
direction  must  take  reasonable  care  so  as  not  to  injure  him,  and  is 
liable  for  consequences  resulting  from  negligence. — Simeone  v. 
Lindsay,  |05  At.  Rep.,  778. 


DUTIES  AND  LIABILITIES  OF  AUTOMOBILE  DRIVERS,    m 

While  the  owners  of  automobiles  have,  subject  to  statu- 
tory restrictions,  equal  rights  with  the  owners  of  other  autov 
mobiles  to  use  the  highways,  this  equaHty  of  rights  imposes 
a  reciprocal  duty  of  managing  the  machine  with  care  and 
caution  to  avoid  causing  injury  to  others  having  equal 
rights. 

The  owner  of  electric  street  cars  in  running  them  is  gov- 
erned by  the  same  rules  which  apply  to  the  management  of 
other  vehicles,  and,  being  of  greater  size  and  weight  than 
vehicles  commonly  are  and  capable  of  being  moved  at  a  very 
high  speed,  the  car  must  at  all  times  be  kept  so  well  in  hand 
as  not  to  expose  others  to  unreasonable  hazard.  See  Currie 
V.  Consolidated  Ry.  Co.,  71  Atl.  356;  Laufer  v.  Bridgeport 


Liability  for  injuries. — A  traveler  on  a  highway,  injured  in 
a  collision  with  the  vehicle  of  another  traveler,  is  entitled  to  recover 
for  the  injuries  received,  in  case  they  resulted  directly  from  the 
want  of  ordinary  care  on  the  part  of  the  latter,  and  not  from  his  own 
want  of  ordinary  care,  directly  contributed.— Standard  Oil  Co.  v. 
Hartman,  62  At.,  805;   102  Md.,  263. 

Public  automobiles. — The  driver  of  a  public  vehicle  is  bound 
to  be  a  skilful  driver,  and  any  damage  arising  from  his  unskilful 
driving  is  a  ground  of  action.  A  less  degree  of  skill  is  to  be  looked 
for  from  the  driver  of  a  private  vehicle,  but  he  is  bound  to  drive 
with  reasonable  care  and  skill.  Collier  v.  Chaplin,  U.  P.,  C.  P., 
cor.  Byles.  J.,  Westminster,  Feb.  1,  1865;  Oliphant's  Law  of  Horses, 
p.  283. 

Reciprocal  riglits  and  duties.  — Towle  v.  Morse,  68  Atl.  Rep. 
1044. 

Electric  street  cars  are  governed  by  the  same  rules  which  apply 
to  the  management  of  other  vehicles,  and  being  of  greater  size  and 
weight  than  they  commonly  are  and  capable  of  being  moved  at  a  very 
high  speed,  the  car  must  at  all  times  be  kept  so  well  in  hand  as 
not  to  expose  others  to  unreasonable  hazard.  Currie  v.  Consolidated 
Ry.  Co.  71  Atl.  356;  Laufer  v.  Bridgeport  Traction  Co.,  68  Conn. 
475;   37  Atl.  Rep.  379;   37  L.  R.  A.  533. 

Negligence. — Lawson  v.  "Wells  Fargo  &  Co.,  113  N.  Y.  S.  647, 
Arseneau  v.  Sweet,  119  N.  W.  Rep.  46,  Wistrom  v.  Redlick  Bros.,  92 
Pac.  Rep.  1048;   Geiselman  v.  Schmidt,  68  Atl.  Rep.  202. 

Ignorance.— Wistrom  v.  Redlick  Bros,  92  Pac.  Rep.  1048. 


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M7 


DUTIES  AND  LIABILITIES  OF  AUTOMOBILE  DRIVERS.    113 

the  driver  of  the  automobile  or  the  traveler,  is  an  unavoid- 
able accident,  and  the  traveler  cannot  recover  therefor.'* 

§  9-  Negligence  most  be  shown. 

To  enable  a  traveler  on  foot  on  a  highway  to  recover  for 
an  injury  sustained  by  being  struck  by  an  automobile,  he 
must  show  by  the  weight  of  the  evidence  that  the  negli- 
gence which  proximately  caused  the  accident  was  the  negli- 
gence of  the  defendant  in  the  operation  of  the  automobile.^ 

§  10.  Prima  facie  evidence  of  negligence. 

Traveling  on  the  wrong  side  of  the  street  while  a  collision 
occurs  constitutes  prima  facie  evidence  of  negligence. — 
Angell  V.  Lewis,  20  R.  I.  391.  See  also  Perlstein  v.  Am. 
Exp.  Co.,  177  Mass.  530. 

§  11.  Drivers  must  anticipate  danger. 

The  driver  of  a  vehicle  is  bound  to  use  reasonable  care 
and  to  anticipate  the  presence  on  the  street  of  other  persons 

4.  Accidents. — Simeone  v.  Lindsay,  65  Atl.  Rep.  778. 

5.  Mast  sliow  negligence. — Simeone  v.  Lindsay,  65  Atl.  Rep.  778; 
Seaman  v.  Mott,  110  N.  Y.  S.  1040. 

Under  the  Illinois  la-iv,  which  provides  that  in  an  action  to 
recover  damages  caused  by  running  an  automobile  at  a  greater 
speed  than  15  miles  per  hour  a  prima  facie  case  shall  be  made  by 
showing  the  injurj'  and  excessive  speed,  it  was  held,  in  an  action 
for  injuries  to  the  plaintiff,  whose  horse  was  frightened  by  the  de- 
fendant's automobile,  that  an  instruction  in  the  language  of  the 
statute  as  to  the  facts  sufficient  to  make  out  a  prima  facie  case  in  an 
action  for  injuries  caused  by  excepsive  speed  was  not  erroneous  on 
the  theory  that  it  ignored  the  question  as  to  whether  the  injuries 
were  occasioned  by  running  the  automobile  at  an  excessive  speed. 
Ward  V.  Meredith,  77  N.  E.  Rep.  119,  220  111.  66. 

Street  car  passenger  hit. — Brewster  v.  Barker,  113  X.  Y.  S.  1026; 
N.  Y.  Transp.  Co.  v.  Garside,  157  Fed.  Rep.  521. 

Pedestrian  crossing  street. — McCormick  v.  Hesser,  71  Atl.  55. 
See  the  chapter  pertaining  to  pedestrians. 


1J4  THE  LAW  OF  AUTOMOBILES. 

having  an  equal  right  with  himself  to  be  there. — Geiselman 
V.  Schmidt,  68  At.  Rep.  202. 

§  12.  Vehicles  left  standing  at  night. 

While  driving  at  night,  the  plaintiff's  vehicle  ran  into  the 
defendant's  carriage,  standing  in  the  dark  directly  across  a 
street,  without  a  light,  signal  or  other  indication  of  danger. 
It  was  held  by  the  Supreme  Court  of  Errors  of  Connecticut 
that  the  lower  court  properly  refused  to  decide  that  the 
defendant's  act  in  leaving  his  carriage  in  such  a  manner  so 
as  to  obstruct  more  than  half  the  highway  was  negligence 
as  a  matter  of  law. — Nesbit  v.  Crosby,  51  At.  Rep.,  550; 
74  Conn.,  554. 

§  13.  Towing  automohiles. 

The  power  of  an  electric  hansom  belonging  to  the  de- 
fendant having  become  weak,  it  w^as  towed  by  another  han- 
som of  the  defendant's  with  a  rope  about  6  or  7  feet  in 
length.  A  driver  was  seated  on  a  high  seat  in  the  rear  of 
each  machine.  At  a  street  crossing  an  officer  in  charge  of 
the  traffic  signaled  them  to  stop,  which  they  did,  and  the 
plaintiff  attempted  to  pass  between  the  two  hansoms.  The 
rear  driver,  seeing  her,  called  out  a  warning  of  the  rope, 
which,  she  testified,  she  did  not  hear,  and  she  was  caught 
by  the  rope  and  thrown.  Held,  that  the  defendant  was  not 
negligent. — Canfield  v.  N.  Y.  Transp.  Co.,  112  N.  Y.,  Supp. 
854. 

§  14.  Negligence. 

Negligence  of  the  defendant  is  properly  found  on  evi- 
dence that,  driving  his  automobile  on  the  street,  he  came  up 
behind  the  plaintiff,  riding  in  the  same  direction  on  a  bi- 
cycle, and  ran  into  his  wheel. — Heath  v.  Cook,  68  Atl.  Rep. 
427. 


DUTIES  AND  LIABILITIES  OF  AUTOMOBILE  DRIVERS.    US 

§  15-  Evidence  of  due  care. 

Where,  in  an  action  for  injuries  to  a  pedestrian  struck 
by  an  automobile,  there  was  evidence  that  he  and  his  com- 
panions, while  on  the  street,  took  precautions  against  injury, 
evidence  that  just  before  the  accident  one  of  the  companions 
looked  back,  and  stated  that  two  street  cars  were  coming, 
and  that  he  looked  back  a  second  time,  and  said  that  if 
they  hurried  they  could  catch  the  second  car,  was  admissi- 
ble as  bearing  on  the  plaintiff's  case,  on  the  jury  finding 
that  the  plaintiff  was  justified  in  relying  on  his  companions. 
— Belleveau  v.  S.  C.  Low  Supply  Co.,  86  N.  E.  Rep.  300. 

§16.  Skidding. 

The  mere  fact  that  a  motor  omnibus  damaged  a  street 
lamp  because  it  skidded  is  sufficient  to  allow  the  case  to  go 
to  the  jury  on  the  question  of  the  driver's  negligence. — 
Walton  &  Co.  v.  The  Vanguard ;  Motorbus  Co.,  T.  L.  Rep., 
Vol.  XXV,  No.  2,  p.  13,  Oct.  27,  1908. 

§  17.  Thoughtless  inattention. 

The  plaintiff  and  his  sister  were  riding  in  an  open  wagon 
drawn  by  one  horse,  and,  discovering  the  canopy  top  of  an 
approaching  automobile  in  which  the  defendant  and  a  com- 
panion were  traveling,  the  sister  gave  the  statutory  signal 
by  raising  the  hand  for  the  automobile  to  stop.  The  de- 
fendant disregarded  the  signal  to  stop  and  ran  the  automo- 
bile out  of  the  highway  two  or  three  rods  into  a  dooryard. 
The  plaintiff  was  thereby  induced  to  believe  that  he  could 
drive  along  in  safety,  but  the  automobile  unexpectedly 
turned  and  reappeared  in  the  highway  directly  in  front  of 
the  plaintiff,  frightening  his  horse,  and  causing  several 
personal  injuries  to  the  plaintiff.  The  verdict  was  for  the 
plaintiff,  who  was  awarded  $225  damages. 

If  the  defendant  had  regarded  the  plaintiff's  signal  and 


216  THE  LAW  OF  AUTOMOBILES. 

promptly  stopped  his  machine,  the  plaintiff  would  have  had 
an  opportunity  to  drive  into  the  dooryard  himself,  as  he 
intended  to  do.  If  the  defendant  had  kept  his  car  stationary 
for  a  few  seconds  in  the  dooryard,  the  plaintiff  could  have 
driven  along  the  highway  safely.  The  defendant  did 
neither  of  these  things;  but,  having  induced  the  plaintiff  to 
believe  that  the  car  would  remain  beyond  the  area  of  dan- 
ger, he  suddenly  reappeared  with  it  in  front  of  the  plain- 
tiff, partly  in  the  highway.  His  explanation  of  this  man- 
agement of  his  car  was  that  the  team  was  so  far  up  the 
road  that  it  had  passed  out  of  his  view.  This  must  be 
deemed  thoughtless  inattention  on  his  part,  and  "  thought- 
less inattention  "  has  been  declared  by  the  Supreme  Judicial 
Court  of  Maine  to  be  the  "  essence  of  negligence." 

The  court  held  that  the  defendant's  thoughtless  inatten- 
tion under  the  circumstances  was  a  failure  of  duty  on  his 
part  toward  the  plaintiff,  and  the  approximate  cause  of  the 
injury,  and  that  the  verdict  in  favor  was  warranted  by  the 
evidence. — Towle  v.  Morse  (Me.,  1908),  68  Atl.  Rep.,  1044, 
citing  Tasker  v.  Farmingdale,  8  Me.,  523 ;  27  Atl.  Rep.  464. 

§  18.  Legal  status  of  guest. 

The  legal  status  of  one  riding  in  an  automobile  as  a 
guest  of  the  driver  or  owner  is  somewhat  uncertain  at  the 
present  time,  owing  to  the  entire  lack  of  judicial  decisions 
covering  cases  involving  the  guest's  rights  and  responsi- 
bilities. 

That  there  is  a  liability  both  civil  and  criminal  which 
might  arise  under  certain  circumstances  must  be  conceded, 
but,  ordinarily,  a  guest  occupies  a  position  very  similar  to 
a  passenger  in  a  train,  in  so  far  as  his  liability  is  concerned, 
with  this  exception,  however:  If  there  is  any  relation  of 
agency,  at  the  time  of  the  commission  of  the  injury,  be- 


DUTIES  AND  LIABILITIES  OF  AUTOMOBILE  DRIVERS.    117 

tween  the  guest  and  the  driver,  for  example,  where  the 
driver  at  the  guest's  request  controls  the  vehicle  in  a  cer- 
tain way,  then  it  may  be  said  that  by  reason  of  the  privity 
existing  between  the  two  parties  there  is  a  joint  liability 
for  a  wrong  committed. 

In  considering  the  rights  of  a  guest  we  have  a  different 
situation  presented,  although  he  pays  nothing  for  riding, 
he  is,  nevertheless,  in  the  care  and  custody  of  the  owner  or 
driver  of  the  machine  and  is  entitled  to  a  reasonable  degree 
of  care  for  his  safety.  If  the  driver  has  negligently  run 
into  some  obstacle  on  the  highway  and  thereby  injured  the 
guest,  undoubtedly  the  owner  and  the  driver  would  be 
liable  to  civil  suit  for  damages.  One  who  voluntarily  ac- 
cepts an  invitation  to  ride  as  a  guest  in  an  automobile  does 
not  relinquish  his  right  of  protection  from  personal  injury 
caused  by  carelessness,  and  it  should  be  understood  by  own- 
ers of  motor  vehicles  that  they  assume  quite  a  serious  re- 
sponsibility when  they  invite  others  to  ride  with  them, 
especially  persons  who  by  reason  of  weaknesses  are  subject 
to  injury  from  slight  causes. 

The  criminal  liability  of  a  guest  riding  in  an  auto  is  quite 
different  from  his  civil  responsibility.  If  a  motor  vehicle 
violates  the  law  concerning  speed  while  a  guest  is  in  it,  he 
may  be  said  to  be  a  user  of  the  machine,  although  he  is  not 
actually  driving.  Most  of  the  State  automobile  acts  in  this 
country  provide  that  no  motor  vehicle  or  automobile  shall 
be  driven  beyond  a  certain  rate  of  speed  at  certain  places. 
This  prohibition  means,  not  only  that  the  person  who  has 
his  hands  upon  the  wheel  shall  not  drive  beyond  the  speed 
limit,  but  no  one  shall,  who  has  it  in  his  power  to  prevent 
it,  allow  the  machine  to  be  driven  faster  than  the  maximum 
rate. 

A  glaring  instance  of  the  statutory  criminal  liability  of  a 


113  THE  LAW  OF  AUTOMOBILES. 

guest  is  conspicuous  in  tlie  Ponisyk-auia  act,  which  provides 
in  Section  5  that 

"  No  person   or   persons   shall   be   allowed  to   use, 

operate  or  drive  any  motor  vehicle     *     *     *     at   a 

greater  speed  than  a  mile  in  six  minutes,  etc." 

It  will  be  seen  that  persons  are  prohibited   from  using 

automobiles  which  are  being  driven  at  a  higher  rate  than 

the  law  prescribes,  and  in  Section  6  of  the  same  act  it  is 

provided  that, 

"  Any  person  usi)ig  or  operating  a  motor   vehicle 
*     *     *     shall  have  displayed  in  a  conspicuous  place 
on  the  front  and  back  of  said  vehicle  tags  furnished  by 
the  State  Highway  Department,  etc." 
These  two  sections   of  the   Pennsylvania  act   apply  to 
guests,  and  it  is  provided  in  Section  10  that  if  any  person 
violates  any  of  the  provisions  of  the  law  he  shall  be  sub- 
jected to  a  penalty,  etc. 

There  is  another  aspect  of  the  guest's  criminal  liability 
aside  from  what  has  been  mentioned,  and  that  is  he  might 
be  considered,  under  certain  circumstances,  as  a  principal 
violator  of  the  law  even  though  he  did  not  actually  drive 
the  machine  at  the  time,  if  the  machine  was  under  his  con- 
trol and  guidance  while  he  acted  in  the  capacity  of  director 
of  its  movements. 

These  questions  are  bound  to  be  brought  up  sooner  or 
later  in  the  courts  and  interesting  decisions  may  be  ex- 
pected.® 

§  19-  Imputed  negligence. 

Where  the  plaintiff,  a  girl  not  over  sixteen  years  of  age, 
was  sitting  in  the  rear  of  a  vehicle  which  her  stepfather 
was  driving,   his   negligence   in   driving  into  a   dangerous 

6.  See  chapter  XIV. 


DUTIES  AND  LIABILITIES  OF  AUTOMOBILE  DRIVERS.    II9 

position  could  not  be  imputed  to  the  plaintiff,  her  status 
being  that  of  a  mere  passenger.  Zalotuchin  v.  Metropolitan 
St.  Ry.  Co.,  106  S.  W.  Rep.  548. 

Where  a  street  car  is  negligently  run  into  a  vehicle,  one 
riding  in  the  vehicle  and  injured  thereby  without  negligence 
on  his  part,  may  recover  for  the  injuries,  although  the 
driver  of  the  vehicle  was  negligent.  Eckels  v.  Muttschall, 
82  N.  E.  Rep.  872. 

Where  the  plaintiff  and  his  companion  were  engaged  in 
hauling  fodder  with  a  team,  and  the  plaintiff  was  injured 
while  his  companion  w^as  endeavoring  to  force  the  horses 
past  an  object  causing  them  fright,  the  relation  of  master 
and  servant,  or  joint  undertakes,  existed  between  the  plain- 
tiff and  his  companion,  so  that  the  plaintiff  was  chargeable 
with  the  negligence  of  the  latter. — Louisville  &  N.  R.  Co. 
V.  Armstrong,  105  S.  W.  Rep.  473. 

In  an  action  against  a  street  railway  for  injuries  to  the 
plaintiff  received  in  a  collision  between  the  defendant's  car 
and  an  automobile,  in  which  the  plaintiff  was  riding  as  a 
pasenger,  having  nothing  to  do  with  the  control  of  the 
machine,  it  was  held  that  he  was  not  chargeable  w^ith  the 
negligence  of  the  driver  of  the  automobile. — Ward  v. 
Brooklyn  Heights  Car  Company,  104  N.  Y.  Supp.,  95. 

In  Chadbourne  v.  Springfield  Street  Railway,  in  the 
Supreme  Judicial  Court  of  Massachusetts  (October,  1908, 
85  N.  E.  737),  it  was  held  that  where  plaintiff,  who  was 
inexperienced  in  the  operation  of  an  automobile,  was  in- 
jured, while  riding  as  the  guest  of  an  experienced  driver, 
in  a  collision  between  the  automobile  and  a  street  car,  the 
driver's  negligence,  if  any,  was  not  imputable  to  her.  On 
this  point  the  court  said  : 

"  The  question  of  the  plaintiff's  due  care  was  for 
the  jury.  She  seems  to  have  conducted  herself  as  an 
invited  guest  of  the  driver  of  an  automobile  or  other 


120 


THE  LAW  OF  AUTOMOBILES. 

vehicle  naturally  would  do.  She  trusted  him  as  to  the 
running  of  the  machine;  that  is,  she  did  not  attempt  to 
interfere  with  his  management  of  the  automobile.  In 
view  of  her  inexperience,  and  of  what  might  have 
been  found  to  be  the  skill  and  experience  of  the  driver, 
the  jury  might  well  have  thought  that  this  was  a  wise 
course  on  her  part.  Nor  was  there  any  relation  of 
agency  between  her  and  the  driver,  such  as  of  itself 
would  affect  her  with  negligence  on  his  part.  She  had 
no  right  to  control  him.  There  was  no  mutuality  in  a 
common  enterprise  between  them.  It  cannot  be  said 
as  matter  of  law  that  she  ought  to  have  warned  the 
driver  against  turning  out  from  behind  the  car  which 
he  had  been  following,  especially  in  view  of  the  fact 
that  he  was  turning  both  in  the  direction  required  by 
statute  (Rev.  Laws.  C.  54.  Sec.  2)  and  in  the  only 
direction  in  which  the  width  of  the  bridge  afforded 
room  for  him  to  pass  that  car.  .\nd  she  had  a  right  to 
rely  somewhat  on  the  acquaintance  with  the  road  which 
she  might  presume  that  he  had. 

Accordingly,  we  need  not  consider  whether  it  can 
be  said  that  Reed's  conduct  was.  as  matter  of  law, 
negligent.  Even  if  this  were  so.  the  plaintiff's  ov\'n  due 
care  was  for  the  jury.  (  Schultz  v.  Old  Colony  St. 
Ry..  193  Mass.,  309.  79  N.  E.,  873,  8  L.  R.  .\.,  N.  S. 
597.  1 18  .\m.  St.  Rep..  502 :  Miller  v.  Boston  &  North- 
ern Street  Ry..  197  Mass..  535,  83  N.  E.,  990.") 


CHAPTER  Vni. 
MEETING  AND  PASSING. 
(See  also  Chapter  VI.) 

Sec.  1.  Turning  to  the  right. 

2.  Failure  to  seasonably  turn  to  right. 

3.  Traveling  on  unfrequented  part  of  highway. 

4.  When  half  of  road  need  not  be  given. 

5.  Presumption  in  case  of  collision. 

6.  Treble  damages  under  statute. 

§  1.  Turning  to  the  right. 

Where  vehicles  are  approaching  on  the  highway,  the  law 
requires  them  to  seasonably  turn  to  the  right  of  the  middle 
of  the  traveled  part  of  the  road,  so  that  they  can  pass  each 
other  without  interference.^ 


1.  Seasonably  turn  to  the  right. — The  rule  of  the  road  re- 
quiring vehicles  approaching  to  seasonably  turn  to  the  right,  means 
turn  to  the  right  in  such  season  that  neither  shall  be  retarded  by 
reason  of  the  other  occupying  his  half  of  the  way.  Neal  v.  Rendall, 
56  At.  Rep.  209;  98  Me.,  69;   63  L.  R.  A.  668. 

"  Persons  in  their  place  of  security  and  power  in  motor-cars 
should  remember  that  their  rapid  and  close  approach  may  make  a 
person  think  that  he  or  she  is  about  to  be  run  over,  when  that  may 
not  be  the  case.  They  should  turn  out  seasonably."  The  plaintiff  in 
the  action  was  driving  behind  a  large  truck  on  the  right  side  of  the 
road,  and,  as  she  turned  to  the  left  to  go  close  along  side  of  it  and 
pass  it,  she  testified  that  she  saw  the  defendant  about  300  feet  away 
coming  toward  her  on  the  same  side  of  the  road.  When  the  automo- 
bile came  almost  up  to  the  heads  of  the  horses  on  the  truck,  the 
plaintiff  turned  to  the  left  in  alarm.  At  the  same  time,  the  de- 
fendant turned  to  the  right  and  ran  into  the  plaintiff's  wagon.  A 
verdict  was  given  for  the  plaintiff,  and  the  defendant  appealed  on 

[121] 


122  THE  LAW  OF  AUTOMOBILES. 

§  2.  Failure  to  seasonably  turn  to  right. 

Failure  to  seasonably  turn  to  the  right  in  meeting  a  vehi- 
cle on  the  highway  is  not  negligence  per  se. — Neal  v.  Ren- 
dall,  56  At.  Rep.,  209;  98  Me.,  69;  63  L.  R.  A.,  668. 

It  constitutes  a  question  of  negligence  for  the  jury. — 
Needy  v.  Littlejohn,  115  N.  W.,  482;  McFern  v.  Gardner, 
121  111.  App.  I,  97  S.  \V.  Rep.  972. 

§  3-  Traveling  on  unfrequented  part  of  highway. 

Though,  as  between  the  public  and  the  traveler,  the  latter, 
if  he  leave  a  portion  of  the  road  laid  out  and  prepared  for 
the  customary  use  and  travel,  and  go  upon  the  unprepared 
and  customary  unused  part,  he  does  so  at  his  own  risk ; 
vet  he  is  entitled  to  the  unobstructed  use  of  the  entire  width 
of  the  highway  as  against  the  unlawful  acts  of  other 
persons.^ 

the  ground  that  the  court  instructed  the  jury  that  it  was  the  duty 
of  the  defendant  to  turn  to  the  right  "  upon  seeing  an  approaching 
vehicle."  It  was  held  that,  while  the  rule  did  not  require  the  de- 
fendant to  turn  out  as  soon  as  an  approaching  vehicle  is  seen,  the 
instruction  to  that  effect  had  not  prejudiced  the  rights  of  the  de- 
fendant in  any  way  and  the  judgment  was  affirmed.  Peters  v. 
Cuneo,  108  N.  Y.  Supp.  264;  Cedar  Rapids  Auto  Co.  v.  Jeffery  &  Co., 
116  N.  W.  Rep.  1054,  Wistrom  v.  Redlick  Bros.,  92  Pac.  Rep.  1048. 
The  New  Jersey  road  act,  91  (Gen.  St.,  p.  2823,)  expressly 
requires  that  drivers  of  vehicles  approaching  one  another  from  op- 
posite directions  shall  each  keep  to  the  right  when  passing.     Unwin 

V.   State,   64   Atl.  Rep.   163  affirmed;   State  v.  Unwin,   68  Atl.   Rep. 

110. 
2.    Traveling    on   nnfreqnented    part    of    high^vay.  — Williams 

V.  San  Francisco  &  N.  \V.  R'way  Co.,  93  Pac.  Rep.,  122. 

Traveling    on    wrong    aide    of   road. — A   traveler    who    for    any 

reason  Is  on  the  wrong  side  of  the  road  must  exercise  greater  care 

to  prevent  a  collision.     N.  Y.  Transp.  Co.  v.  Garside,  85  C.  C.  285; 

Pluckwell  V.  Wilson,  5  Carrington  &  Payne   (Eng.)   375;  Fahrney  v. 

O'Donnell,  107  111.  App.  C08;  Angell  v.  Lewis,  20  R.  I.  391. 

Injured  party  on  wrong  side  of  road. — Under  the  Rhode  Island 

General  Laws,  1896,  Chapter  74,  51,  providing  that  a  person  traveling 


MEETING  AND  PASSING.  123 

§  4.  When  half  of  road  need  not  be  given. 

While  the  law  requires  a  person  on  a  public  highway  in 
any  vehicle  to  turn  to  the  right  and  give  one-half  of  the 
traveled  road  upon  meeting  another  vehicle,  yet  the  fact 
that  one  does  not  give  the  other  half  of  the  road  is  not 
conclusive  evidence  of  negligence,  and  in  an  action  to 
recover  for  injuries  alleged  to  have  been  caused  by  the 
defendant's  failure  to  give  the  plaintiff's  buggy  half  of  the 
road,  if  the  plaintiff's  horse  and  buggy  were  outside  the 
traveled  road,  the  defendant  need  not  give  one-half  of  the 
road,  but  could  run  his  automobile  on  the  traveled  path, 
provided  there  was  room  to  pass  and  the  plaintiff's  horse 
had  shown  no  signs  of  fright. — Needy  v.  Littlejohn,  115 
N.  W.,  483. 

§  5.  Presumption  in  case  of  collision. 

If  a  collision  takes  place  the  presumption  is  against  the 
person  on  the  wrong  side  of  the  road. — Angell  v.  Lewis, 

with  a  vehicle  on  a  highway  shall  seasonably  turn  to  the  right  of  the 
centre  of  the  traveled  road  on  meeting  any  other  person  so  travel- 
ing, a  person  injured  by  collision  with  a  vehicle  while  riding  a 
bicycle  on  the  left  side  of  the  road  must  show  a  sufficient  excuse 
for  being  there,  to  attribute  negligence  to  the  driver  of  the  vehicle. 
Puick  V.  Thurston,  54  At.  Rep.,  600;   25  R.  I.,  36. 

Liability  for  turning  out. — Under  the  provision  of  the 
Iowa  statute,  requiring  a  person  in  a  vehicle  to  give  to  another 
vehicle  one-half  of  the  road  on  meeting,  liability  on  failing  to  do 
so  arises  only  when  such  failure  is  the  proportionate  cause  of  re- 
sulting injury.     Needy  v.  Littlejohn,  115  N.  W.,  483. 

Questions  for  jury. — In  McFern  v.  Gardner,  97  S.  W.  Rep.  972, 
the  St.  Louis  Court  of  Appeals  of  Missouri  holds  that  the  question 
of  the  negligence  of  the  chauffeur  in  turning  the  automobile  to  the 
left  instead  of  to  the  right  as  required  by  law,  in  failing  to  dis- 
cover another  vehicle  and  in  driving  the  machine  at  a  dangerous 
rate  of  speed,  are  for  the  jury  to  determine.  It  is  also  held  in  this 
case  that  it  is  the  duty  of  a  chauffeur  driving  an  automobile  on  the 
public  highway  in  a  populous  place  to  keep  a  vigilant  watch  ahead 
for  vehicles  and  pedestrians,  and  at  the  first  appearance  of  danger 
to  take  proper  steps  to  avert  it. 


124  THE  LAW  OF  AUTOMOBILES. 

20  R.  I.,  391 ;  In  Perlstein  v.  Am.  Exp.  Co.,  177  Mass.  530, 
it  was  held  that  evidence  that  the  plaintiff  was  driving  oi\ 
the  right  hand  side  of  the  street  close  to  the  sidewalk  is 
ezndcnce  of  due  care  on  his  part,  and  that  the  defendant 
was  driving  *'  very  fast  "  in  the  opposite  direction  and  col- 
lided with  the  plaintiff  was  evidence  of  negligence  on  the 
part  of  the  defendant. 

§  6.  Treble  damages  under  statute. 

The  plaintiff,  in  order  to  get  treble  damages  under  the 
General  Statutes  of  Connecticut,  Sections  2689,  2690,  pro- 
viding that  drivers  of  any  vehicles  "  for  the  conveyance  of 
persons  "  meeting  each  other  in  a  highway  shall  turn  to  the 
right  and  slacken  speed,  and  any  driver  of  such  vehicle 
who  shall,  by  failure  to  do  so,  drive  against  another  vehicle, 
shall  pay  to  the  party  injured  treble  damages,  must  show 
by  the  complaint,  as  well  as  evidence,  that  the  defendant 
was  driving  such  a  vehicle ;  and  a  mere  description  of  the 
vehicle  as  a  wagon  or  team  is  insufficient. — Rowell  v. 
Crothers,  52  At.  818;  75  Conn.  124. 

For  additional  matter  concerning  this  subject,  see  Chap- 
ter VI. 


CHAPTER  IX. 

OVERTAKING  AND  PASSING— TURNING  CORNERS. 

(See  also  Chapter  VI.) 

Sec.  1.  Overtaking  and  passing. 

2.  Applicability  of  statutes. 

3.  Statute  may  be  read  to  jury. 

4.  Turning  corners. 

5.  Approaching  at  right  angle  crossings. 

1 1.  Overtaking  and  passing. 

The  rule  that  one  who  attempts  to  pass  another  on  the 
highway  going  in  the  same  direction  has  the  right  to  do 
so  in  such  manner  as  may  be  most  convenient  under  the 
circumstances,  and  where  damage  results  to  the  person 
passed  the  former  must  answer  for  it,  unless  the  latter  by 
his  own  carelessness  brought  the  disaster  on  himself,  is  ap- 
plicable to  one  attempting  to  pass  a  standing  vehicle  which 
he  approaches  from  the  rear.  Altenkirck  v.  National  Bis- 
cuit Company,  iii  N,  Y.  S.  284. 

An  automobilist,  on  overtaking  and  attempting  to  pass 
two  heavily  loaded  trucks  on  a  road,  drove  his  automobile 
between  the  rear  truck  and  a  passing  carriage,  cleared  the 
rear  truck,  and  struck  the  head  one,  resulting  in  injury  to 
himself  and  his  automobile.  The  drivers  of  the  trucks  had 
stopped  their  horses  to  rest  them,  and  the  head  truck  was 
nearer  the  centre  of  the  road  than  the  other.  Because  it 
was  dark  and  the  road  curved  sharply  and  was  on  a  grade, 
the  automobilist's  lights  did  not  disclose  the  trucks  until  he 
was  upon  them.     Held  that  the  accident  was  caused  by  the 

[125] 


126  THE  LAW  OF  AUTOMOBILES. 

automobilist's  own  negligence.  Lorenz  v.  Tisdale,  in 
N.  Y.,  Siipp.  175. 

In  an  action  for  damages  due  to  the  defendant's  auto- 
mobile colliding  with  the  plaintiff's  carriage,  going  in  the 
same  direction,  the  question  whether  the  defendant  was 
negligent  in  attempting  to  pass  the  plaintiff  on  the  left,  as 
the  law  provides,  near  a  corner  which  they  were  approach- 
ing, when  he  knew  that  if  the  plaintiff  should  turn  the 
corner  a  collision  would  occur,  and  that  a  delay  of  a  few 
moments  would  show  whether  the  plaintiff  was  to  turn  or 
not,  was  one  for  the  jury.  See  jMendelson  v.  Van  Ren- 
selaer,  103  N.  Y.  Supp.  578. 

For  additional  matter  concerning  this  subject,  see  Chap- 
ter VI. 

§  2.  Applicability  of  statutes. 

The  Massachusetts  law  which  provides  that  the  driver 
of  a  carriage  or  other  vehicle  passing  a  carriage  or  other 
vehicle  traveling  in  the  same  direction  shall  drive  to  the 
left  of  the  middle  of  the  traveled  part  of  the  way.  applies 
to  the  driver  of  a  team  passing  from  behind  an  electric 
street  car  which  has  stopped  to  let  off  passengers.  The  fact 
that  in  passing  from  behind  an  electric  street  car  which  has 
stopped  to  let  off  passengers,  the  driver  of  the  vehicle  goes 
to  the  right  of  the  car,  instead  of  to  the  left  as  recjuired  by 
statute,  is  evidence  of  negligence  on  his  part.^ 

1.   Massachnsetts   statute. — McGourty    v.    De    Marco,    200    Mass. 

57. 

The  New  Jersey  road  act.— Section  91  (Gen.  St.,  p.  2823),  ex- 
pressly requires  that,  when  the  vehicles  are  jnoving  in  the  same 
direction,  and  the  driver  of  the  one  in  the  rear  desires  to  pass  the 
one  in  front  of  him.  he  shall  pass  it  on  his  left,  the  driver  of  the 
vehicle  in  front  keeping  over  to  the  right  while  being  passed.  Un- 
win  V.  State,  64  All.  Rep.  163,  affirmed;  State  v.  Unwin,  68  Atl.  Rep. 
110. 


OVERTAKING  AND  PASSING— TURNING  CORNERS,      ij; 

§  3.  Statute  may  be  read  to  jury. 

Tlie  Public  Statutes  of  New  Hampshire,  Ch.  76,  Sec.  16, 
declare  that  if  a  person  traveling  on  a  iiighvvay  is  informed 
that  another  person  traveling  in  the  same  direction  desires 
to  pass  him,  he  shall  turn  to  the  right,  if  there  is  sufficient 
room  to  enable  him  to  do  so.  In  Nadeau  v.  Sawyer,  59  At. 
Rep.  369 ;  yi  N.  H.,  70,  it  was  held  that  in  an  action  for  in- 
juries sustained  by  the  plaintiff,  owing  to  her  horse  having 
been  frightened  by  the  defendant's  automobile,  when  the 
defendant  was  attempting  to  pass  the  plaintiff  going  in  the 
same  direction,  and  having  given  warning,  it  was  not  error 
for  the  court  to  read  the  statute  to  the  jury,  as  it  was  evi- 
dence relative  to  the  issue. 

§  4.  Turning  corners. 

Where  the  defendant's  automobile  collided  with  the 
plaintiff's  carriage  in  attempting  to  pass  when  the  plain- 
tiff was  turning  a  corner,  the  question  whether  the  plain- 
tiff's attempt  to  turn  the  corner  by  keeping  to  the  left 
in  the  usual  beaten  path  when  the  law  required  keeping 
to  the  right  constituted  contributory  negligence  was  a 
matter  for  the  jury.  Under  the  conditions  the  question 
whether  the  defendant  gave  a  sufficient  warning,  or 
whether  he  properly  managed  his  automobile  in  attempting 
to  pass  the  plaintiff  at  the  point  was  also  a  question  of  fact 
for  the  jury.  See  Mendelson  v.  Van  Renselaer,  103  N.  Y. 
Supp.  578. 

§  5.  Approaching  at  right  angle  crossings. 

Where  two  persons  are  approaching  each  other  at  right 
angles,  the  rights  of  each  are  equal,  and  each  is  bound  to 
exercise  reasonable  care  to  avoid  injury  to  the  other. 
Gilbert  v.  Burque,  57  At.  Rep.  927;  72  N.  H.  521. 


CHAPTER  X. 

FRIGHTENING  HORSES. 

(See  also  Chapter  VI.). 
Sec.  1.  In  general. 

2.  Notice  that  horses  take  fright. 

3.  When  driver  may  pass  a  horse. 

4.  Runaway  horses. 

5.  Noise. 

6.  Contributory  negligence. 

7.  When  horses  are  beyond  control, 

8.  Breakdown  on  highway. 

§  1.  In  general. 

"  Automobiles  are  constantly  driven  along  streets  past 
horses  without  frightening  them,  and  if  the  appearance  and 
movement  of  a  particular  automobile  and  the  noise  incident 
to  its  operation  are  in  no  way  unusual,  it  is  not  per  se  a 
wrongful  act  to  operate  it  in  proximity  to  a  horse,  so  long 
as  the  horse  exhibits  no  fright."  Per  the  St.  Louis  Court 
of  Appeals  in  O'Donnell  v.  O'Neil,  109  S.  W.  Rep.  815.^ 

1.  Evidence. — Where  the  plaintiff  was  injured  by  his  horse  be- 
coming frightened  at  a  passing  automobile,  evidence  as  to  the  con- 
dition of  the  highway  300  feet  east  from  where  the  defendant's 
witness  saw  the  automobile  and  east  of  where  the  accident  oc- 
curred was  held  inadmissible  as  being  too  remote.  Strand  v.  Grin- 
nell  Automobile  Garage  Co.,  113  Northwestern  Reporter,  488. 

In  an  action  for  injuries  to  the  plaintiff  by  his  horse  becoming 
frightened  at  the  defendant's  automobile,  evidence  of  the  plaintiff's 
negligence  was  held  to  be  a  question  for  the  jury  to  determine. 
Strand  v.  Grinnell  Automobile  Garage  Co.,  113  N.  W.  Rep.  488. 

The  plaintiff  was  the  only  witness  as  to  the  speed  of  the  defen- 
dant's automobile  and  as  to  a  signal  to  stop.     He  was  contradicted 

11281 


FRIGHTENING  HORSES.  129 

Where  in  an  action  for  damages  occasioned  by  the  fright- 
ening- of  plaintiff's  team  by  the  operation  of  defendant's 
automobile,  it  appeared  that  the  team  pulled  back  and  es- 
caped immediately  on  the  stopping  of  the  automobile,  and  it 
did  not  appear  that,  had  the  defendant  arrested  the  sparker 
as  soon  as  he  saw  or  might  have  seen  that  the  team  was 
frightened,  it  would  have  been  in  time  to  have  obviated 
their  escape,  or  that  he  could  have  done  anything  to  have 
stopped  their  fright  after  he  might  have  discovered  it,  he 
was  not  guilty  of  negligence  warranting  a  recovery. 
House  v.  Cramer,  112;  N.  W.  Rep.  3. 

Where  the  plaintiff's  horse  became  frightened  at  bags  of 
cement  located  near  a  culvert,  from  which  the  planking 
had  been  removed,  and  the  plaintiff,  without  knowledge  of 
such  open  culvert,  endeavored  to  urge  the  horse  past  the 
cement,  and  in  doing  so  momentarily  lost  control  of  the 
horse,  so  that  the  buggy  was  driven  into  the  open  culvert 
and  overturned,  there  being  no  barriers  or  warning  signs 


on  both  points  by  four  or  five  witnesses.  There  was  no  evidence 
that  the  machine  made  an  unusual  noise  or  emitted  steam  or  smoke 
which  might  cause  fright.  The  jury  found  for  the  plaintiff.  The 
plaintiff  claimed  that  the  defendant  did  not  have  his  horse  under 
control,  and  that  the  animal  shied  at  the  sight  of  the  automobile, 
causing  the  carriage  to  slip  down  a  depression  in  the  road.  The  court 
held  that  a  new  trial  should  be  granted.  Silberman  v.  Huyette,  22 
Montg.  Co.  L.  Rep.  39. 

In  an  action  for  injuries  caused  by  the  frightening  of  a  horse  by 
an  automobile,  the  evidence  was  held  to  present  a  question  for  the 
jury  whether  the  defendant  was  guilty  of  gross  negligence  in  the 
operation  of  the  automobile.  Welskopf  v.  Ritter,  97  S.  W.  Rep. 
1120,  29  Ky.  Law  Rep.  1268. 

In  an  action  for  injuries  to  the  plaintiff's  wife  resulting  from 
the  plaintiff's  mule  becoming  frightened  at  the  defendant's  automo- 
bile, which  was  stopped,  with  the  engine  running,  near  a  bridge  to 
permit  the  plaintiff  to  pass,  it  was  held  that  the  evidence  required 
the  submission  of  the  question  of  negligence  of  the  defendant's  chauf- 
feur to  the  jury.  Rochester  v.  Bull,  58  S.  E.  Rep.  766. 
9 


130  THE  LAW  OF  AUTOMOBILES. 

to  prevent  travelers  using  the  road  across  the  culvert,  it  was 
held  that  the  plaintiff  was  not  negligent  as  a  matter  of  law. 
Judd  v,  Caledonia  Turnpike,  114  N.  W.  Rep.  346. 

Where  the  plaintiff  alleged  that  the  defendant  drove  its 
automobile  on  a  street  at  a  high  rate  of  speed,  and  negli- 
gently ran  it  against  the  plaintiff's  horses,  frightening  and 
injuring  them,  and  causing  them  to  run  away,  evidence  that 
the  automobile  approached  slowly,  but  that  the  driver  failed 
to  stop  it,  or  slacken  its  speed  when  seeing  that  the  horses 
were  frightened  and  about  to  run,  was  proof  of  facts  not 
legally  identical  with  those  alleged,  and  the  plaintiff  could 
not  recover.^ 

§  2.  Notice  that  horses  take  fright. 

The  operator  of  an  automobile  propelled  by  a  gasoline 
engine  is  charged  with  notice  of  the  fact  that  horses  may 
be  frightened  thereby,  and  is  bound  to  handle  his  machine 
in  such  a  manner  as  to  avoid  frightening  horses  lawfully 
on  the  highway.^ 

2.  Trout  Brook  Ice  Co.  v.  Hartford  Electric  Light  Co.,  59  Atl.  Rep. 
405.  77  Conn.  338. 

Verdict  sustained. — In  Strand  v.  Grinnell  Automobile  Garage 
Co.,  113  N.  W.  Rep.  488,  a  verdict  was  sustained  which  held  an 
automobilist  to  have  been  negligent  in  frightening  a  horse. 
3.  Notice.— House  v.  Cramer,  112  N.  W.  Rep.  3. 
It  is  incumbent  upon  a  person  driving  an  automobile  along  a 
highway  to  take  notice  that  motor  cars  are,  as  yet,  usually  strange 
objects  to  horses,  and  are  likely  to  startle  the  animals  when  driven 
up  in  front  of  them  at  a  rapid  rate.  Mclntyre  v.  Orner,  1G6  Ind. 
57. 

Excuse  for  failure  to  observe  frightened  horses. — It  is  no 
justification  for  the  failure  of  the  driver  of  an  automobile  to  look 
ahead  and  observe  the  fright  of  horses  drawing  an  approaching  car- 
riage that  it  5s  necessary  for  him  to  keep  his  eyes  and  attention 
fixed  on  the  track  of  the  road  to  enable  him  to  guide  the  machine 
by  the  carriage  safely  and  to  avoid  chuck  holes  and  other  obstacles. 
Mclntyre  v.  Orner,  166  Ind.  57. 


FRIGHTENING  HORSES.  131 

"  Just  when  a  horse  is  about  to  become  frightened  and 
just  when  he  is  actually  frightened  is  very  difficult  to  deter- 
mine, and  we  think  the  plain  meaning  of  the  statute  is  to 
require  persons  using  such  vehicles  as  automobiles,  cal- 
culated to  frighten  horses,  to  stop  the  same  whenever  a 
horse  shows  indication  of  fright  upon  their  approach." 
Per  Illinois  Supreme  Court  in  Ward  v.  Meredith,  yy  N.  E. 
Rep.  1 1 8,  220  111.  66.^ 

§  3.  When  driver  may  pass  a  horse. 

Under  laws  of  Wisconsin,  1905,  p.  469,  c.  305,  Sec.  4, 
requiring  that  the  operator  of  an  automobile  on  a  signal 
of  distress  by  a  person  driving  horses  shall  cause  the  auto- 
mobile to  stop  all  motor  power  and  remain  stationary,  un- 
less a  movement  forward  shall  be  deemed  necessary  to, 
avoid  accident  or  injury,  it  is  for  the  operator  to  determine 
whether  a  forward  movement  is  necessary,  and  his  deter- 
mination in  controlling  unless  he  acts  unreasonably  or  in 
bad  faith.  Cummins  v.  State,  112  N.  W.  Rep.  25;  also 
deciding  sufficiency  of  criminal  pleading. 

§  4.  Eunaway  horses. 

No  inference  of  negligence  arises  from  the  fact  that  a 
gentle  horse  was  left  untied  in  the  public  street,  free  from 
the  presence  of  anything  which  might  disturb  him,  the 
driver  being  within  a  few  feet  of  the  wagon  to  which  the 
horse  was  hitched,  and  it  appearing  that  the  driver  had 
been  accustomed  to  use  the  horse  in  that  way  for  many 
years  without  an  accident.  Belles  v.  Kellner,  51  At.  Rep, 
700;  67  N.  J.  Law,  255  ;  57  L.  R.  A.  627. 


4.  The  obligation  imposed  by  the  Illinois  Stat.  1903,  as  to  the 
stopping  of  an  automobile  when  a  horse  is  about  to  be  frightened, 
applies  as  well  to  cases  where  the  horse  has  actually  become  fright- 
ened. Ward  V.  Meredith,  122  111.  App.  159;  judgment  affirmed  77 
N.  E.  Rep.   118,  220   111.   66. 


133  THE  LAW  OF  AUTOMOBILES. 

§  5-  Noiae. 

A  motorist,  in  compliance  with  a  signal  from  the  driver 
of  a  mule,  ran  his  machine  into  a  cut-out  in  the  bank  on  the 
side  of  the  road,  and  the  forward  motion  of  the  machine 
stopped.  The  motor,  however,  was  permitted  to  continue 
running,  and,  according  to  the  testimony  given  in  an  action 
by  the  party  driving  the  mule,  gave  forth  considerable 
noise  and  caused  the  whole  machine  to  vibrate.  The  plain- 
tiff continued  his  approach ;  the  mule  becoming  more  or 
less  frightened  as  he  neared  the  machine.  When  he  was 
almost  opposite  it,  he  became  uncontrollable,  and  ran  over 
to  the  extreme  right  of  the  road,  where  he  struck  a  tele- 
phone pole,  throwing  the  plaintiff  from  the  wagon.  The 
question  of  the  negligence  of  the  defendant  was  permitted 
to  go  to  the  jury  and  the  jury  found  negligence  and 
awarded  damages  to  the  plaintiff.  It  is  a  fact  of  which 
courts  will  take  judicial  notice  that  automobiles  on  high- 
\vays,  especially  when  they  are  infrequent,  have  a  tendency 
to  frighten  animals.  The  duty,  therefore,  devolves  upon 
the  drivers  of  such  machines  to  exercise  due  care  to  prevent 
accidents.  The  amount  of  necessary  care  varies  with  the 
various  circumstances,  and  acts,  which  in  a  given  case  might 
be  negligence  in  another  might  be  due  care.  Therefore  it  is 
almost  absolutely  necessary  that  what  action  amounts  to 
due  care  must  be  a  question  of  fact.  From  the  evidence, 
it  was  held  that  the  present  case  was  one  in  which  great 
care  was  required.  Rochester  v.  Bull  58  S.  E.  Rep.  766. 
See  also  Sapp  v.  Hunter,  115  S.  W.  Rep.  463;  Fletcher  v. 
Dixon,  68  Atl.  Rep.  875. 

§  6-  Contributory  negligence- 
One  who  leaves  a  horse  unhitched  on  a  city  street  takes 
the  risk  of  what  the  horse  may  do.     It  was  held  in  Henry 
V.  Klopfer,  147  Pa.  178,  that  such  an  act  raises  a  presump- 


FRIGHTENING  HORSES.  133 

tion  of  negligence,  and  puts  on  the  party  doing  it  the 
burden  of  showing  circumstances  which  justified  or  ex- 
cused it.  How  strong  the  presumption  will  be  must  depend 
largely  on  the  circumstances.  If  the  horse  is  young,  skit- 
tish, nervous  or  unused  to  the  sights  and  sounds  of  a  city 
street,  the  presumption  would  be  strong,  while,  if  he  is  old, 
staid  and  accustomed  to  city  life,  it  might  be  very  slight. 
But  even  a  staid  and  veteran  horse  may  be  liable  to  sudden 
fright.  It  is  a  matter  for  the  jury.  Stevenson  v.  U.  S, 
Express  Company,  Pa.  Leg.  Intel.,  July  3,  1908,  Sup.  Ct. 

In  Kokoll  V.  Brohm  &  Buhl  Lumber  Co.,  71  Atl.  Rep. 
.120,  the  Supreme  Court  of  New  Jersey  holds  that  the  un- 
explained presence  on  a  public  highway  of  a  team  of  run- 
away horses,  harnessed  to  a  wagon,  unattended  by  the 
owner  or  other  person,  raises  a  presumption  of  negligent 
management  on  the  part  of  the  owner;  and  if  they  collide 
with  another  vehicle  on  the  street  because  they  were  not 
under  proper  control,  the  owner  w^ill  be  liable  for  damages 
resulting  therefrom.^ 

5.  Failure  to  jump. — In  an  action  to  recover  damages  for  per- 
sonal injuries  sustained  by  the  plaintiff  in  consequence  of  the  fright- 
ening of  his  horses  by  the  defendant's  automobile,  an  allegation  in 
the  declaration  that  at  an  earlier  hour  on  the  same  day  of  the  ac- 
cident the  defendant's  automobile  had  passed  the  plaintiff's  carriage 
and  greatly  frightened  his  horses,  does  not  justify  the  court  in  pre- 
suming that  it  was  contributory  negligence  for  the  plaintiff  to  fail 
to  jump  out  of  his  carriage  upon  the  second  approach  of  the  auto- 
mobile.    Mclntyre  v.  Orner,  166  Ind.  57. 

Injury  by  horse. — One  may  recover  for  injury  caused  by  a  run- 
away horse  which  has  been  left  unhitched,  without  proof  that  it 
had  a  habit  of  running  away,  known  to  its  owner,  if  it  was  left  in 
the  street  unhitched  under  circumstances  which  made  it  negligence 
to  do  so.     Haywood  v.  Hamm,  58  At.  Rep.,  695;  77  Conn.,  158. 

A  person  in  charge  of  a  horse  on  a  public  highway  is  bound  to 
take  care  that  it  will  do  no  injury  in  consequence  of  being  fright- 
ened, and  if  he  leaves  it,  must  see  that  it  is  securely  fastened.  City 
of  Denver  v.  Utzler,  88  Pac.  Rep.  143.  ^ 


134  THE  LAW  OF  AUTOMOBILES. 

i  7.  When  horses  are  beyond  control. 

Horses  are  not  to  be  considered  beyond  control  of  their 
driver  where  they  merely  shy  or  start  and  for  a  moment 
have  their  own  way.  Johnson  v.  City  of  Marquette,  117 
N.  W.658. 

§  8.  Breakdown  on  highway. 

Where  a  power  propelled  vehicle,  .^able  to  frighten 
horses,  breaks  down  on  a  public  highway,  and  is  left  at  the 
place  of  the  breakdown,  the  owner  of  the  vehicle  is  not 
liable  because  a  horse  becomes  frightened  at  the  vehicle, 
unless  there  was  unreasonable  delay  in  repairing  and  re- 
moving it.  Davis  &  Son  v.  Tnornburg,  62  S.  E.  Rep. 
1088. 


CHAPTER  XI. 

DUTY  TO  STOP  AUTOMOBILE. 

(See  also  Chapter  VI.) 

Sec.  1.  Duty  to  stop. 

2.  When  engine  must  be  stopped. 

3.  Stopping  on  signal. 

4.  Signal  unnecessary. 

5.  Construction  of  statute. 

§  1.  Duty  to  stop. 

When  it  becomes  evident  to  the  driver  of  an  automobile 
that  his  machine  is  frightening  the  horses  hitched  to  an 
approaching  carriage  and  that  his  further  progress  will 
increase  the  peril  of  the  persons  in  the  carriage,  it  is  his 
duty  to  stop,  or  at  least  slack  up,  irrespective  of  whether 
the  occupants  of  the  carriage  are  guilty  of  negligence. 

When  the  driver  of  an  automobile  on  a  highway  sees, 
or  by  the  exercise  of  reasonable  caution  could  see,  that  the 
horses  drawing  an  approaching  carriage  are  unmistakably 
frightened  and  are  forcibly  crowding  off  of  the  road,  or- 
dinary care  requires  him  to  slow  up,  stop  his  machine,  or 
do  whatever  is  reasonably  required  to  relieve  the  persons 
in  the  carriage  from  their  perilous  situation.^ 

1.   Duty  to  stop.— 'Mclntyre  v.  Orner,   166  Ind.   57. 

Stopping  machine  near  horses. — Where  the  operator  of  an  au- 
tomobile stopped  it  in  the  street  near  a  blacksmith  shop,  and  antici- 
pated starting  again  shortly,  he  was  not  negligent  in  allowing  the 
explosions  from  his  gasoline  engine  to  continue  unless  he  saw  that 
they  were  frightening  the  plaintiff's  team,  or  in  the  exercise  of 
ordinary  care  ought  to  have  noticed  it,  and  by  ordinary  diligence 
might  have  stopped  the  explosion  in  time  to  have  avoided  the  run- 
away.   House  V.  Cramer,  112  N.  W.  Rep.,  3. 

[135] 


136  THE  LAW  OF  AUTOMOBILES. 

§  2.  When  engine  must  be  stopped. 

In  House  v.  Cramer,  112  N.  W.  Rep.  3.  it  was  held  that 
the  operator  of  an  automobile  was  not  bound  to  stop  his 
engine  on  temporarily  stopping  the  automobile,  unless  he 
saw  that  the  explosions  were  frightening  the  plaintiff's 
team,  or,  in  the  exercise  of  ordinary'  care,  might  have 
stopped  such  explosions  in  time  to  have  prevented  the 
team  from  running. 

§  3.  Stopping  on  signal. 

The  General  Laws  of  Minnesota,  page  646,  Chap.  356 
(Sec.  1277,  Rev.  Laws  1905),  providing  that  the  driver 
of  an  automobile  on  any  public  road,  when  signaled  by  the 
driver  of  any  team,  shall  stop  until  the  other  vehicle  has 
passed,  do  not  require  the  driver  of  the  automobile  to  stop 
the  motive  power  of  his  vehicle  in  addition  to  stopping  the 
vehicle  itself;  and  whether  the  defendant's  failure  to  stop 
the  motive  power  is  negligence  must  be  decided  by  the  cir- 
cumstances of  each  case.  Mahoney  v.  Maxfield,  113  N.  W. 
Rep.  904. 

Under  the  Indiana  automobile  law  it  is  held  that  an  au- 
tomobile driver  must  stop  upon  signal  from  any  one  in  a 
horse-drawn  carriage,  the  word  "  driving "  not  being 
limited  to  the  mere  physical  act  of  managing  or  directing 
the  horse.^ 


2.  Motorist  must  stop  on  signal  from  any  occnpant  of  car- 
riage under  Indiana  statute. — A  prosecution  was  lodged  against 
an  Indiana  motorist  for  refusing  to  bring  his  car  to  a  stop, 
upon  being  signaled  to  do  so,  in  compliance  with  the  statutes  of 
that  State  which  provide  a  penalty  for  the  driver  of  an  automobile 
who  fails  to  stop  upon  request  by  signal  from  any  person  "  riding, 
leading  or  driving  a  horse."  In  this  case  the  signal,  which  was 
ignored  by  the  motorist,  came  from  a  carriage  containing  two  per- 
sons and  was  given  by  the  occupant  who  was  not  driving,  the  driver 
being  engrossed  in  his  efforts  to  restrain  the  frightened  horse.     The 


DUTY  TO  STOP  AUTOMOBILE.  I37 

§  4-  Signal  unnecessary. 

The  fact  that  the  plaintiff,  when  approaching  an  auto- 
mobile with  a  restive  horse,  did  not  signal  the  chauffeur  to 
stop,  did  not  reheve  the  latter  from  his  duty  to  exercise 
ordinary  care  to  avoid  an  accident  and  to  stop  the  automo- 
bile until  the  plaintiff's  horse  could  pass,  if  such  precau- 
tion appeared  to  be  reasonably  necessary.^ 

§  5-  Construction  of  statute. 

A  Wisconsin  statute  provides  that  every  person  driving 
an  automobile,  on  a  signal  of  distress  from  a  person  driving 
horses,  shall  cause  the  automobile  to  stop  all  motor  power 
and  remain  stationary,  until  the  horses  appear  to  be  under 
control,  "  unless  a  movement  forward  shall  be  deemed 
necessary  to  avoid  accident  or  injury."     In  a  prosecution 

motorist  sought  to  escape  liability  on  the  ground  that  the  signal 
did  not  come  from  the  person  "  driving "  the  horse,  as  required  by 
the  statute,  but  was  given  by  someone  in  the  carriage  who  was  not 
actually  engaged  in  driving.  In  other  words,  he  asked  the  court  to 
construe  the  statute  to  mean  that  it  was  not  his  duty  to  stop  unless 
signalled  to  do  so  by  the  person  handling  the  reins.  As  is  usual  in  a 
case  where  a  precise  definition  of  a  word  is  required,  recourse  was 
had  to  the  dictionaries,  where  driving  is  found  to  mean  "  to  ride  in 
a  vehicle  drawn  by  horses,  or  other  animals,  or  to  direct  or  control 
the  animals  that  draw  it."  While  criminal  statutes,  as  a  rule,  are 
to  be  strictly  construed,  courts  refuse,  on  one  hand,  to  hold  persons 
not  clearly  brought  within  the  scope  of  the  statute  and,  on  the 
other  hand,  to  discharge  those  not  clearly  within  its  scope.  It  was 
held  that,  to  attach  to  the  statute  the  construction  claimed  by  the 
defense  would  be  unreasonable,  if  not  absurd,  and  that  the  signal  to 
stop,  in  order  to  be  legally  effective  need  not  be  given  by  the  person 
holding  the  lines,  but  may  be  given  by  any  occupant  of  the  vehicle. 
State  V.  Goodwin,  82  N.  E.  Rep.  459. 

3.  Necessity  for  signal. — The  driver  of  a  restive  horse,  on  ap- 
proaching an  automobile  is  not  required  under  all  circumstances  to 
give  a  signal  to  a  chauffeur  or  driver  to  stop  in  order  to  free  him- 
self from  contributory  negligence.  Strand  v.  Grinnell  Automobile 
Garage  Co.,  113  N.  W.  Rep.  488. 


238  THE  LAW  OF  AUTOMOBILES. 

under  this  statute  it  was  held  that  the  word  "  deemed,"  as 
used  in  the  act,  conveys  the  idea  that  the  standard,  upon 
which  the  operator  is  to  act  in  determining  whether  a  for- 
ward movement  is  necessary,  rests  in  his  own  judgment. 
He  must,  of  course,  in  all  cases  act  reasonably  and  in  good 
faith.  In  this  particular  prosecution  it  appeared  that  the 
defendant  did  not  bring  his  car  to  a  full  stop  upon  being 
given  the  distress  signal,  and  he  was  sentenced  to  pay  a 
fine  of  $25  in  addition  to  $9,526,  the  costs  of  the  prosecu- 
tion.    McCummins  v.  State,  112  N.  W.  Rep.  25."* 


4.   Indictment  for  failnre  to  stop. — State  v.  Goodwin,  82  N.  R- 
Rep.  459. 


CHAPTER  Xn. 

PEDESTRIANS  AND  MISCELLANEOUS. 
(See  also  Chapter  VI.) 

Sec.  1.  Pedestrian's  rights. 

2.  Pedestrians  crossing  streets. 

3.  Rights  of  street  laborers. 

4.  Reasonable  speed. 

5.  Speed  at  night. 

6.  Conviction  of  speeding. 

7.  Carrying  lights. 

8.  Driving  on  railway  tracks. 

§  1.  Pedestrian's  rights. 

Ordinarily  a  pedestrian  has  no  right  of  way  superior  to 
that  of  the  driver  of  an  automobile,  but  each  may  continue 
in  his  own  course  with  relative  regard  for  the  other's  right 
of  travel,  and  the  driver  of  a  motor  car  is  not  bound  to 
bring  his  car  to  a  stop,  in  the  absence  of  proof  authorizing 
an  inference  that,  in  the  exercise  of  due  care,  he  had  reason 
to  believe  that  if  he  proceeded  a  pedestrian  would  come  in 
contact  with  the  car,  and  where  it  did  not  appear  that,  after 
such  contact  was  inevitable,  the  driver  of  the  motor  omitted 
anything  to  prevent  that  contact  there  was  no  liability.^ 

1.  Rights   of   pedestrians. — Seaman   v.   Mott,    110    N.    Y.    Supp. 

1040. 

In  Gregory  v.  Slaughter,  99  S.  W.  Rep.  247,  which  holds  an  auto- 
mobilist  liable  in  damages  for  colliding  with  a  pedestrian  on  a  high- 
way, the  court  says  in  his  opinion: 

"  The  appellant  complains  in  his  brief  that  he  is  the  victim 
of  public  prejudice  against  automobiles.    This  may  be  true,  and, 

[139] 


140  THE  LAW  OF  AUTOMOBILES. 

§  2.  Pedestrians  crossing  streets. 

Where  one  injured  by  being  run  over  by  an  automobile 
in  the  streets  of  a  city  saw  it  before  it  struck  her,  or  by 

if  so,  that  prejudice  is  based  upon  the  carelessness  of  a  large 
number  of  automobilists  of  a  character  similar  to  that  of  which 
this  record  shows  appellant  was  guilty.     The  owners  of  automo- 
biles   have    the    same    right    on    the    public    highways    as    the 
owners  of  other  vehicles;   but  when  one  drives  so  dangerous  a 
machine  through  the  public  thoroughfares  it  is  incumbent  upon 
him  to  exercise  corresponding  care  that  the  safety  of  the  travel- 
ing public  is  not  endangered  thereby.     When  owners  of  automo- 
biles learn  this  it  is  confidently  believed  that  whatever  prejudice 
may  now  exist  against  them  in  the  public  mind  will  entirely  dis- 
appear, for  the  public  is  not  usually  prejudiced  without  cause." 
A  pedestrian  struck  by  an  automobile  is  not  guilty  of  contributory 
negligence  because  he  was  standing  in  the  roadway,  conversing  with 
one  who  had  there  stopped  his  team  to  talk  with  him.     Kathmeyep 
V.  Mehl,  60  Atl.  Rep.  40.     The  court  in  this  case  says:    "Certainly 
he  had  no  reason  to  suppose  that,  merely  because  he  was  standing  in 
the  roadway,  he  would  be  run  down  by  the  recklessness  of  the  driver 
of  an   automobile.     He   was  lawfully  there,   and   any   person  using 
the  highway  was  bound  to  take  notice  of  him,  and  to  use  care  not 
to  injure   him,   and   the   plaintiff  had   a  right  to   assume  that  this 
would  be  done." 

The  defendant  approached  on  the  left  side  of  the  street  on  account 
of  the  right  side  being  blocked.  The  plaintiff  had  just  stepped  from 
a  street  care  and  was  making  for  the  sidewalk  when  she  noticed  an 
automobile  coming  on  the  right  side  of  the  street,  and,  of  course, 
from  the  opposite  direction  from  that  of  the  defendant's  car.  In 
stepping  back  out  of  the  way  of  the  other  automobile,  the  plaintiff 
got  in  the  path  of  and  was  struck  by  the  defendant's  machine.  An 
ordinance,  as  well  as  general  custom,  requiring  automobiles  to  keep 
to  the  right  side  of  the  road,  and  the  defendant  being  on  the  left, 
it  was  held  that  the  defendant  was  bound  to  exercise  greater  care  and 
caution  to  avoid  injuring  pedestrians  and  was  held  liable  in  dam- 
ages. It  was  also  held  proper  to  instruct  the  jury  that,  if  the  driver 
of  the  defendant's  machine  saw,  or  should  have  seen,  that  another 
automobile  was  approaching  from  the  opposite  direction,  and  that 
between  the  two  the  plaintiff  would  be  placed  in  a  dangerous  posi- 
tion, it  was  his  duty  to  stop  until  the  danger  was  past,  and  that  a 
failure  to  stop  the  machine  rendered  the  defendant  liable.  New 
York  Transportation  Company  v.  Garside,  157  Fed.  Rep.  521. 


PEDESTRIANS  AND  MISCELLANEOUS.  I4I 

reasonable  use  of  her  senses  could  have  seen  it  in  time  to 
avoid  the  injury,  she  could  not  recover.^ 

A  pedestrian  and  the  driver  of  an  automobile  must  each  be  care- 
ful in  the  exercise  of  his  rights  upon  the  streets,  and  the  owner 
or  driver  of  the  automobile  must  exercise  the  greatest  care  and  vigi- 
lance not  to  injure  the  pedestrian,  and  the  pedestrian  is  bound  to 
not  place  himself  where  an  injury  will  probably  result.  Brewster 
V.  Barker,  113  N.  Y.  S.  1026. 

Running  over  person's  foot. — A  person  who  seeing  another 
seated  on  a  park  bench,  drives  a  vehicle  so  near  him  as  to  pass  over 
his  foot,  is  negligent.  Silvermann  v.  City  of  New  York,  114  N.  Y. 
S.  59. 

Question  of  negligence  for  jury  — The  case  is  for  the  jury  to 
decide  where  the  plaintiff  was  standing  on  the  edge  of  a  pavement 
with  one  foot  on  the  curb  and  the  driver  of  an  automobile,  either 
through  reckless  management  or  through  inexperience,  drove  the  ma- 
chine on  the  curb  and  injured  him.    May  v.  Allison,  30  Super.  50. 

2.  Pedestrians  crossing  streets  must  look. — Where  one  in- 
jured by  being  run  over  by  an  automobile  in  the  streets  of  a  city 
saw  it  before  it  struck  her,  or  by  reasonable  use  of  her  senses  could 
have  seen  it  in  time  to  avoid  the  injury,  she  could  not  recover.  Han- 
nigan  v.  Wright,  63  At.  Rep.,   234. 

Contributory  negligence  of  pedestrian. — Where  a  person 
crossing  a  street  hears  a  horn  when  he  is  within  ten  feet  of  the 
curb  and  sees  an  automobile  coming  130  feet  away,  and  does  not 
look  towards  the  auto  and  walks  into  the  street  where  he  knows  the 
machine  will  pass,  he  is  guilty  of  contributory  negligence  and  can- 
not recover.    McCormich  v.  Hesser,  N.  J.,  71  Atl.  55. 

The  question  of  negligence  was  one  for  the  jury  where  a  pedes- 
trian was  struck  by  an  automobile  as  she  was  about  to  board  a  street 
car.  She  was  not  entitled  to  take  a  position  even  three  or  four  feet 
from  the  car  tracks  and  remain  oblivious  to  the  surroundings,  but 
she  was  not  guilty  of  contributory  negligence  because  she  did  not 
look  and  did  not  see  or  hear  the  approaching  machine.  Arseneau  v. 
Sweet,  Minn.  119  N.  Y.  46. 

In  an  action  by  a  boy  12  years  old,  injured  by  the  defendant's 
automobile  while  he  was  playing  in  the  roadway,  it  was  held  that 
the  question  of  contributory  negligence  was  for  the  jury.  Turner  v. 
Hall,  64  At.  Rep.  1060. 

Stepping  in  front  of  automobile. — There  is  no  rule  Of  law 
that  requires  an  automobile  to  slow  up  as  it  passes  a  moving  trolley 
car  in  the  country.    The  duty  is  different  where  the  trolley  car  is 


14-2  THE  LAW  OF  AUTOMOBILES. 

§  3.  Rights  of  street  laborers. 

The  rights  of  a  laborer  whose  duties  require  him  to  be  in 
that  part  of  the  street  devoted  to  the  use  of  vehicles,  with 
respect  to  such  vehicles,  cannot  be  determined  by  the  same 
rules  applicable  to  pedestrians  with  no  occupation  requiring 
their  presence  in  that  part  of  the  street.^ 

§  4.  Reasonable  speed. 

Reasonable  safe  rate  of  speed  is  a  question  for  the  jury.'* 

standing  to  receive  and  discharge  passengers.  Nor  is  tlie  automobile 
driver  called  upon  to  assume  that  a  passenger  will  leap  from  a  trolley 
car  while  it  Is  in  motion,  and  step  in  the  path  of  an  automobile  in 
his  immediate  presence.  Where  a  passenger  steps  or  jumps  from  a 
moving  trolley  car,  even  if  the  car  has  little  speed,  and  the  momen- 
tum of  the  car  carries  him  forward,  so  that  he  cannot  look  back 
and  see  an  approaching  automobile,  he  is  negligent,  if  he  steps  in 
front  of  the  automobile  in  full  view,  the  moment  he  attempts  to 
cross  the  highway.     Starr  v.  Schenck,  25  Mont.  L.  Rep.   (Pa.)   18. 

Injured  person  attempting  to  avoid  automobile.  — In  Sco- 
field  v.  Town  of  Poughkeepsie,  107  N.  Y.  Supp.  7C7.  it  was  held  that 
the  plaintiff  could  not  recover  against  the  town  because  he  was  in- 
jured by  colliding  with  telephone  poles  along  the  highway  while 
attempting  to  get  out  of  the  way  of  an  automobile. 

3.  Striking  person  in  street. — In  an  action  for  injuries  to  the 
plaintiff  through  being  struck  from  behind  while  oiling  the  street 
car  tracks  by  the  defendant's  automobile,  the  evidence  was  held  to 
support  the  finding  that  the  defendant  was  negligent  and  that  the 
plaintiff  was  not  guilty  of  contributory  negligence.  King  v.  Grien, 
94  Pac.  Rep.  777. 

4.  Reasonably  safe  speed. — Brewster  v.  Barker,  113  N.  Y.  Supp. 
1026;  Merkl  v.  Jersey  City  H.  &  P.  St.  Ry.  Company,  68  Atl.  Rep. 
74. 

A  bicyclist  was  run  down  by  an  automobile.  Where  a  collision 
occurred  the  fact  that  the  person  was  on  the  wrong  side  of  the  road 
was  prima  facie  evidence  of  negligence.  If  the  defendant  was  driv- 
ing at  a  high  rate  of  speed  it  was  held  to  be  negligence,  and  the 
operator  is  bound  to  anticipate  meeting  persons  and  vehicles  and 
must  keep  his  machine  under  control,  under  Conn.  Pub.  Acts  1905, 
eh.  230.  That  the  high  rate  of  speed  was  an  unreasonable  one  con- 
sidering the  time  and  place,  and  one  which  prevented  the  defendant 


PEDESTRIANS  AND  MISCELLANEOUS.  I43 

§  5-  Speed  at  night. 

It  is  astonishing  to  note  that  none  of  the  state  automobile 
laws  fix  a  lower  speed  limit  for  night  than  for  day  driving. 
It  must  be  conceded  that  fast  driving  at  night  is  more 
hazardous  than  driving  at  the  same  speed  during  the  day 
time,  especially  when  traveling  through  villages  or  settle- 
ments. In  the  large  cities  there  is  likely  to  be  less  traffic 
on  the  streets  during  certain  hours  of  the  night,  and  there 
an  automobile  might  therefore  safely  travel  slightly  faster 
than  during  the  day.  While  none  of  the  states  in  the 
Union  has  so  far  recognized  the  greater  danger  involved 
in  fast  driving  at  night,  one  of  the  Canadian  provinces 
has  recently  passed  a  law  according  to  which  the  speed  at 
night  must  be  kept  within  one-half  the  limit  for  day 
driving.^ 

from  controlling  his  machine  to  prevent  a  collision,  though  it  was 
less  than  the  maximum  statory  rate,  was  held  to  be  a  correct  in- 
struction, where  the  law  required  the  rate  of  speed  to  be  "  reason- 
able and  proper,  having  regard  to  the  width,  traffic  and  use  of  the 
highway."     Irwin  v.  Judge,  Conn.  71  Atl.  573. 

Effect  of  speed  on  negligence.  — In  Freel  v.  Wanamaker,  57 
At.  Rep.  563;  208  Pa.  279,  the  verdict  against  the  owner  of  a  vehicle 
for  injuries  to  a  child  was  sustained,  where  the  evidence  was  that 
the  vehicle  was  driven  at  a  high  rate  of  speed. 

In  Recard  v.  Penn.  R.  R.  Co.,  G7  At.  Rep.  1040,  it  was  held  that 
the  rate  of  speed  at  which  an  automobile  was  traveling,  from  12 
or  15  miles  an  hour,  did  not  constitute  negligence  per  se,  but  the 
question  of  contributory  negligence  in  the  case  was  for  the  jury. 

Excessive  speed. — In  an  action  to  recover  for  injuries  to  the 
plaintiff's  horse  and  buggy,  caused  by  the  defendant  driving  his  auto- 
mobile on  the  public  highway  at  an  excessive  speed,  the  evidence  was 
examined  and  held  insufficient  to  warrant  a  finding  for  the  plaintiff, 
on  the  theory  that  the  defendant  drove  at  an  excessive  speed.  Needy 
v.  Littlejohn,  115  N.  W.  Rep.  483. 

5.  Speed  at  night.  —The  speed  at  which  any  vehicle  can  be 
driven  over  a  highway  at  night  must  be  determined  partly  in  view 
of  the  distance  ahead  of  it  at  which  travelers  upon  or  approaching 
the  same  highway  would  become  visible.  Currie  v.  Consolidated  Ry. 
Co.,  71  Atl.  Rep.  356. 


144  THE  LAW  OF  AUTOMOBILES. 

5  6.  Conviction  of  speeding. 

In  an  action  against  the  owner  of  an  automobile  for 
causing  the  death  of  the  plaintiff's  decedent  by  frightening 
a  horse  that  was  being  driven  on  a  highway,  causing  it  to 
run  away  and  colHde  with  a  wagon  in  which  the  decedent 
was  riding,  thereby  causing  his  death,  the  negligence 
charged  was  the  failure  to  stop  when  warned  that  the  au- 
tomobile was  frightening  the  horse.  It  was  held,  that 
evidence  that  the  defendant  had  been  convicted  of  exceed- 
ing the  speed  limits  fixed  by  local  ordinances  in  different 
places  was  not  competent,  as  it  had  no  bearing  on  the  ques- 
tion of  negligence  involved;  the  violation  of  local  ordi- 
nances not  being  evidence  affecting  moral  character. 
While  evidence  of  the  commission  of  a  crime  is  generally 
admissible  as  bearing  on  moral  character,  the  violation  of 
local  ordinances  is  generally  not  a  crime,  but  only  a  lesser 
offense,  which  does  not  imply  any  moral  turpitude.  See 
V.  Wormser,  113  N.  Y.  S.  1093. 

§  7-  Carrying  lights. 

Automobiles  at  night  must  be  provided  with  such  means 
of  illumination  as  may  be  requisite,  in  connection  with  the 
light,  if  any,  to  be  expected  from  other  sources,  to  enable 
the  motorman  or  chauffeur  to  see  far  enough  ahead  to  do 
whatever  ordinary  care  may  demand  in  order  to  avoid  col- 
lision with  any  other  vehicle  on  the  highway. 

An  automobilist  is  not  necessarily  bound  as  respects 
other  travelers  to  equip  his  automobile  with  a  particular 
kind  of  light,  known,  used  and  approved  by  those  engaged 
in  driving  automobiles  under  like  conditions,  as  the  auto- 
mobilist may  be  using  a  light  that  is  better.* 

6.   Lights.  — Currle  v.  Consolidated  Ry.  Co..  71  Atl.  Rep.  356. 
The  plaintiff  sued    for  damages   resulting   from   a  collision   of  an 
automobile,  in  which  he  was  riding  upon  a  city  street,  with  an  iron 


PEDESTRIANS  AND  MISCELLANEOUS.  145 

Whether  it  is  negligence  for  the  owner  of  an  automobile 
to  run  it  in  the  dark  without  the  warning  to  one  approach- 
ing from  the  opposite  direction  which  a  headlight  gives  is 
a  question  for  the  juryj 

The  fact  that  there  were  no  numbers  on  the  front  lamps 
of  an  automobile  was  held  to  be  not  admissible  evidence 
as  this  could  not  have  contributed  to  the  injury.  Evidence 
that  two  pedestrians  had  looked  back  to  see  if  a  car  was 
coming,  and  their  conversation,  was  held  competent  to  show 
the  precaution  taken  by  them  from  anything  coming  from 
behind.^ 

Where  the  chauffeur  testified  that  there  were  four  lamps 
on  the  machine  all  lighted,  and  on  cross  examination  stated 
that  he  understood  that  the  law  required  that  any  two  of 


trolley  pole,  as  the  result  of  a  sudden  turn  of  the  vehicle  to  avoid 
the  gates  of  a  railroad-crossing  which  had  been  lowered.  The  acci- 
dent occurred  at  night.  The  case  showed  that  the  plaintiff's  head- 
lights were  burning,  but  that  the  usual  lights  upon  the  gates  were 
not.  and  that  as  to  the  brightness  of  the  street  and  other  lights  in  the 
vicinity,  the  evidence  was  conflicting.  The  case  was  tried  before  a 
judge  without  a  jury,  who  gave  judgment  for  the  plaintiff  against 
the  railroad  company,  the  defendants.  On  appeal  it  was  held  that 
the  absence  of  the  lights  usually  attached  to  the  gates  was  suffi- 
cient evidence  of  negligence  to  make  it  a  jury  question.  Recard  v, 
Penn.  R.  R.  Co.,  67  At.  Rep.  1040. 

SeaTch  lights  in  city  prohibited.  — The  New  York  Board  of 
Aldermen  has  recently  amended  Section  458  of  the  Code  of  Ordi- 
nances of  the  city  of  New  York,  relating  to  vehicle  lighting,  by  add- 
ing the  following:  "No  operator  of  any  automobile  or  other  motor 
vehicle,  while  operating  the  same  upon  the  public  highway,  within 
the  city,  shall  use  any  acetylene,  electric  or  other  headlight,  unless 
properly  shaded  so  as  not  to  blind  or  dazzle  other  users  of  the  high- 
way, or  make  it  difficult  or  unsafe  for  them  to  ride,  drive  or  walk 
thereon." 

7.  Negligence. — Wright  v.  Crane,  106  N.  W.  Rep.  71,  12  Det.  Leg. 
N.  794. 

8.  Nnmbers  on  front  lamps.  — Belleveau  v.  Lowe  Supply  Co., 
86  N.  E.  Rep.  301. 

10 


146  THE  LAW  OF  AUTOMOBILES. 

the  lamps  in  front  should  have  the  number  of  the  machine, 
the  refusal  to  permit  the  plaintiff  to  go  into  the  matter 
whether  there  were  any  numbers  on  either  light  was  not 
erroneous,  no  claim  being  made  that  a  violation  of  the  law 
contributed  to  the  accident.'-* 

^  8.  Driving  on  railway  tracks. 

Where  a  person  has  the  right  to  use  the  tracks  of  an  elec- 
tric railway  company,  by  running  an  automobile  thereon, 
he  must  use  care  and  caution  in  so  doing,  and  if  he  knows 
that  a  car  is  coming  from  the  rear,  he  must  use  more  than 
ordinary  care  and  caution,  and  he  is  guihy  of  contributory 
negligence  if  he  fails  to  do  so.^" 

Persons  dismounting  from  streetcar. — One,  who  is  dis- 
mounting into  a  street  from  a  street  car,  has  a  right  to  ex- 
pect that  anyone  driving  up  from  behind  in  an  automobile 
will  exercise  proper  care  to  avoid  running  into  him.^^ 


9.  Materiality  of  evidence.  — Belleveau  v.  S.  C.  Lowe  Supply 
Co.  86  X.  E.  Rep.  301. 

10.  Driving  on  tracks.— Watts  V.  Ry.,  34  C.  C,  369,  Pennsyl- 
vania. 

While  engaged  in  oiling  street  car  tracks,  the  proper  discharge  of 
which  duty  required  him  to  move  backwards  along  the  rail,  the  plain- 
tiff was  struck  from  behind  by  the  defendant's  automobile.  He  was 
facing  at  the  time  in  the  direction  from  which  any  car  or  vehicle 
obeying  the  law  of  the  road  would  approach.  Held,  that  the  ques- 
tion of  the  plaintiff's  contributory  negligence  was  for  the  jury.  King 
V.  Grien,  94  Pac.  Rep.  777. 

Street  car  running  into  automobile. — Foley  V.  Railway  Co., 
112  N.  Y.  App.  Div.  G49. 

Street  car  striking  automobile. — Evidence  as  to  the  striking 
of  an  automobile  by  a  street  car  held  sufficient  to  take  the  question 
of  the  company's  negligence  to  the  jury.  Lehman  v.  New  York  City 
Railway  Company,  107  X.  Y.  S.  5G1. 

11.  Dismounting. — There  is  no  absolute  rule  of  law  requiring 
one,  before  dismounting  from  a  street  car  into  a  street,  to  look  up 
and   down   the   street  to   see   if  there   is   any   danger   from   passing 


PEDESTRIANS  AND  MISCELLANEOUS.  147 

Grade  crossings. — As  long  as  grade  crossings  exist  catas- 
trophes will  occur,  and  the  question  arises  which  of  the  two 
parties  concerned,  the  railroad  or  the  highway  traveler,  is 
to  blame.  In  all  the  recent  discussion  concerning  grade 
crossing  accidents  to  motorists  one  point  on  which  the  whole 
question  of  legal  liability  may  hinge  has  utterly  escaped  at- 
tention, namely,  that  almost  every  state  law  requires  the 
automobile  driver  to  reduce  his  speed  to  a  very  low  rate 
when  crossing  intersecting  highways.  This  provision  of 
the  statutes  is  one  of  those  least  obeyed ;  but  few  arrests 
are  made  for  its  violation,  probably  because  the  law  is  un- 
known to  police  officials. 

There  can  be  no  question  that  a  railroad  crossing  a  pub- 
lic highway  stands  in  the  same  relation  to  the  highway  as 
though  it  were  a  common  highway  itself.  In  fact,  a  rail- 
road comes  within  the  meaning  of  the  term  "  public  high- 
way "  as  employed  in  our  motor  vehicle  laws.  Conse- 
quently, an  automobile  driver  is  compelled  to  materially 
decrease  his  speed  when  he  approaches  a  railroad  crossing. 
In  most  of  the  states  the  speed  limits  at  such  crossings  are 
from  4  to  6  miles  an  hour. 

Violation  of  the  law  providing  for  speed  reduction  at 
intersecting  highways  puts  the  automobilist  at  fault,  at  least 
prima  facie,  and  the  fact  that  he  was  driving  too  fast  at 
the  time  of  the  accident  is  a  circumstance  damaging  to  him 
if  he  should  proceed  at  law  for  recovery  for  any  injury  in- 

vehicles.  McGourty  v.  De  Marco,  200  Mass.  57;  Citing  Hennessey 
V.  Taylor,  189  Mass.  583;  Murphy  v.  Armstrong  Transfer  Co.,  167 
Mass.  199;  Bowser  v.  Wellington,  126  Mass.  391. 

It  is  negligence  for  a  person  in  charge  of  an  automobile  to  run 
it  along  the  street  past  a  street  car,  that  has  stopped  to  allow  per- 
sons to  get  off  and  on,  at  a  rate  of  six  or  seven  miles  an  hour. 
Brewster  v.  Barker,  113  N.  Y.  S.,  1026. 

A  passenger  alighting  from  street  car  is  not  bound  to  look  to  the 
right  and  left  for  danger.    Brewster  v.  Barker,  113  N.  Y.  S.,  1026. 


148  THE  LAW  OF  AUTOMOBILES. 

flicted.  Unless  he  can  prove  negligence  on  the  part  of  the 
railroad,  his  case  is  a  hopeless  one. 

More  emphasis  should  be  laid  upon  compliance  with  the 
speed  regulations  at  crossings  and  in  turning  corners,  for  at 
these  places  the  danger  due  to  fast  driving  is  far  greater 
than  that  due  to  driving  at  25  miles  an  hour  over  a  straight, 
unobstructed  course. 

It  is  well  settled,  that  a  traveler  approaching  a  railroad 
track  is  bound  to  use  his  eyes  and  ears  so  far  as  there  is  an 
opportunity,  and  when,  by  the  use  of  those  senses,  danger 
may  be  avoided,  notwithstanding  the  neglect  of  the  railroad 
servants  to  give  signals,  the  omission  of  the  plaintiff  to  use 
his  senses  and  avoid  the  danger  is  concurring  negligence, 
entitling  the  defendant  to  a  nonsuit.  This  rule  applies  to  a 
passenger  in  a  vehicle  approaching  a  railroad,  as  well  as 
to  the  person  in  charge  of  the  motive  power  of  the  vehicle. 
But,  in  determining  in  each  particular  case  whether  or  not  a 
failure  to  look  or  listen  was  negligence  that  contributed  to 
the  accident,  the  age,  condition,  and  situation  of  the  plain- 
tiff, the  existing  circumstances  are  to  be  taken  into  con- 
sideration. It  is  not  in  every  case  that  a  failure  to  look  or 
listen  would  be  negligence,  as  in  the  case  of  a  passenger 
in  a  street  car  approaching  a  railroad  track,  where  the  car 
is  entirely  under  the  control  and  management  of  those 
charged  with  its  management,  or  in  the  case  of  a  very  young 
child  in  a  conveyance  approaching  the  track. ^^ 

12.  Grade  croasings.— Noakes  v.  N.  Y.  Cent.  etc.  R.  Co.,  106  N.  Y. 
Supp.  522. 


CHAPTER  Xm. 
PROOF  OF  SPEED. 

Sec.  1.  Evidence  of  chauffeur  or  operator. 

2.  Observers  may  give  estimates. 

3.  Qualifications  of  observers. 

4.  Weight  of  evidence. 

5.  Incorrect  estimates. 

6.  Imagination. 

7.  Line  of  vision. 

8.  Time  consumed. 

9.  Noise. 

10.  Facts  incompatible  with  estimates. 

11.  Distance. 

12.  Speed  at  one  place  inadmissible  as  to  speed  at  another. 

13.  Effect  of  bias. 

14.  Burden  of  proof. 

15.  Evidence  under  English  law. 

16.  Evidence  that  vehicle  "  went  fast." 

17.  High  rate  of  speed. 

18.  Comparative  amount  of  noise. 

19.  Distance  in  which  object  could  be  seen. 

20.  Meeting  horses. 

21.  Passenger  in  automobile. 

22.  Summary  and  conclusion. 

§  1.  Evidence  of  chauflFeur  or  operator. 

Naturally,  evidence  as  to  the  speed  of  an  automobile  is 
of  more  or  less  value  or  v.^eight  according  to  the  situation 
of  the  witness  at  the  time  of  the  speed  and  the  witness'  ex- 
perience. A  child  observing  a  passing  automobile  would, 
of  course,  be  incapable  of  giving  reliable  testimony  as  to 
its  speed,  so  also  would  the  testimony  of  an  adult  be  un- 
reliable where  his  eyesight  is  impaired    In  fact  most  per- 

[149] 


150  THE  LAW  OF  AUTOMOBILES. 

sons  under  normal  conditions  would  not  be  able  to  give 
testimony  from  observation  which  would  warrant  a  de- 
termination in  accordance  therewith.  The  question  arises, 
"  Who  constitutes  a  reliable  witness  as  to  the  speed  of  an 
automobile?"  Considering  all  the  rules  that  have  been 
promulgated  concerning  the  weighing  of  testimony  or  evi- 
dence the  party  controlling  the  operation  of  a  passing  ob- 
ject, such,  for  example,  as  the  chauffeur  or  operator  of  an 
automobile,  should  be  regarded  by  the  courts  as  one  of  the 
best  and  most  reliable  witnesses  as  to  the  speed  of  his  ma- 
chine if  he  is  to  be  believed  so  far  as  truthfulness  is  con- 
cerned.^ The  chauffeur  or  operator  of  an  automobile,  hav- 
ing control  of  the  vehicle,  is  the  custodian,  so  to  speak,  of  the 
speed.  This  is  an  important  consideration.  His  testimony 
should  be  especially  valuable  if  it  consists  not  merely  of  any 
expression  of  his  judgment  or  opinion,  but  of  what  he 
actually  did  in  the  way  of  regulating  the  speed;  since,  in  the 
latter  case  it  might  be  necessary  for  the  trier  of  facts  to 
find  him  guilty  of  perjury  if  his  testimony  is  not  to  be 
credited,  and  very  strong  evidence  is  always  required  to 
justify  that  severity.  Where,  for  example,  the  chauffeur 
or  operator  is  able  to  testify  as  to  what  he  did  in  reference 
to  shutting  off  the  power,  applying  the  brakes,  or  any  other 
matter  pertaining  to  the  regulation  of  the  speed,  this  should 
furnish,  at  least,  strong  corroborative  evidence.  Because 
the  chauffeur  is  so  closely  in  touch  with  the  autonio])ile's 
movements,  courts  should  give  great  weight  to  his  evidence, 
if,  as  said  before,  it  is  truthful. 

§2.  Observers  may  g^ve  estimates. 

Those  who  observe  a  passing  object  or  automobile  may 
testify  to  their  estimates  of  its  apparent  speed  without  qual- 

1.  See  Bowes  v.  Hopkins,  84  Fed.  Rep.  767;    N.  Y.  Transp.  Co.  v. 
Garside,  157  Fed.  Rep.  521. 


PROOF  OP^  SPEED.  15] 

ifying  as  experts,  although  their  testimony  may  not  be  of 
much  weight  as  compared  with  the  testimony  of  those  who 
have  been  accustomed  to  make  and  verify  estimates  of  the 
speed  of  moving  objects.^  Thus  it  has  been  held  that  an 
observer  may  testify  as  to  his  estimate  of  the  rate  of  speed 
of  a  dummy  engine,^  an  electric  car,^  and  a  carriage  which 
of  course  specifically  covers  the  automobile.^  In  the  case 
of  Detroit,  etc.,  R.  Co.  v.  Van  Steinburg,  17  Mich.  99,  104, 
it  is  said :  "  Any  intelligent  man,  who  has  been  accustomed 
to  observe  moving  objects,  would  be  able  to  express  an 
opinion  of  some  value  upon  it  the  first  time  he  ever  saw  a 
train  in  motion.  The  opinion  might  not  be  so  accurate  and 
reliable  as  that  of  one  who  had  been  accustomed  to  observe, 
with  time-piece  in  hand,  the  motion  of  an  object  of  such 
size  and  momentum;  but  this  would  only  go  to  the  weight 
of  the  testimony  and  not  to  its  admissibility."  It  may  be 
testified  that  the  automobile  was  going  at  a  certain  estimate 
of  speed  as  compared  to  other  modes  of  motion ;  ^  thus  a 
witness  who  was  an  observer  may  be  permitted  to  testify 
that  the  machine  was  moving  at  a  snail's  pace,  or  no  faster 

2.  Kansas,  etc.,  R.  R.  Co.  v.  Crocker,  95  Ala.  412,  11  So.  Rep.  262; 
Louisville,  etc.,  R.  Co.  v.  Jones,  108  Ind.  551,  9  N.  E.  Rep.  476;  De- 
troit, etc.,  R.  Co.  V.  Steinburg,  17  Mich.  99. 

3.  Highland  Avenue,  etc.,  R.  Co.  v.  Sampson,  112  Ala.  425  20  So 
Rep.  566. 

4.  Eclaigton,  etc.,  R.  Co.  v.  Hunter,  6  App.  Cas.  (D.  C.)  287; 
Potter  v.  O'Donnell,  199  111.  119,  64  N.  E.  Rep.  1026;  Mertz  v.  De- 
troit Electric  R.  Co.,  125  Mich.  11,  83  N.  W.  Rep.  1036;  Mathieson 
v.  Omaha  St.  R.  Co.,  (Neb.  1902)  92  N.  W.  Rep.  639;  Fisher  v. 
Union  R.  Co.,  86  N.  Y.  App.  Div.  365.  83  N.  Y.  Supp.  694;  Toledo 
Electric  St.  R.  Co.  v.  Westenhuber,  22  Ohio  Cir.  Ct.  Rep.  67,  12  Ohio 
Cir.  Dec.  22;  Sears  v.  Seattle  Consol.  St.  R.  Co.,  6  Wash.  227,  33 
Pac.  Rep.  389;  Robinson  v.  Louisville  R.  Co.,  112  Fed  Rep  484  5 
C.  C.  A.  357. 

5.  Brown  v.  S wanton,  69  Vt.  53,  37  Atl.  Rep.  280;  Porter  v. 
Buckley.  147  Fed.  Rep.  140,  78  C.  C.  A.  138. 

6.  Kansas  City,  etc.,  R.  Co.  v.  Crocker,  95  Ala.  412,  11  So.  Rep.  262. 


1^2  THE  LAW  OF  AUTOMOBILES. 

than  a  man  walks,  or  faster  than  a  man  could  runJ  Testi- 
mony that  the  speed  was  dangerous,*  "  very  fast,"  ® 
"  fast,"  '"  ''  high,"  11  "  reckless,"  ^^  and  "  unusual  "  ^^  is  ad- 
missible. Ignorance  of  the  witness  as  to  the  number  of 
feet  or  rods  in  a  mile  will  not  incapacitate  his  testimony. 
Thus  tlie  testimony  of  a  witness  who  estimates  the  speed 
of  an  automobile  at  a  certain  number  of  miles  per  hour  will 
not  be  struck  out  because,  on  cross-examination,  he  con- 
fesses that  he  does  not  know  how  many  feet  or  rods  there 
are  in  a  mile.^* 

§  3.  Qualifications  of  observers. 

It  has  been  held,  and  it  is  probably  the  correct  view,  that 
an  observer  of  a  passing  object  in  order  to  testify  as  to  its 
speed  must  qualify  to  the  extent  of  showing  a  measure  of 
experience  and  observation  which  will  make  his  opinion 
fairly  reliable.  As  said  before,  the  evidence  of  some  parties, 
it  would  seem,  could  not  be  admissible  on  the  speed  of  an 
automobile.  Clearly  one  not  in  possession  of  the  necessary 
facuhies  could  not  testify.^^  It  has  been  laid  down  that 
observation  and  knowledge  of  time  and  distance  are  all  that 


7.  Kansas  City,  etc.,  R.  Co.  v.  Crocker,  95  Ala.  412,  11  So.  Rep.  262. 

8.  Lockhart  v.  Litchtenthaler,  46  Pa.  St.  151.     But  see  Alabama 
Great  Southern  R.  Co.  v.  Hall,  105  Ala.  599,  17  So.  Rep.  176. 

9.  Johnson  v.  Oakland,  etc..  Electric  R.  Co.,  127  Cal.  608,  60  Pac. 
Rep.  170. 

10.  Illinois  Cent.  R.  Co.  v.  Ashline,  171   111.  313,  49  N.  E.  Rep. 

521. 

11.  Black  V.  Burlington,  etc.,  R.  Co.,  38  Iowa  515. 

12.  Galveston,   etc.,  R.  Co.   v.  Wesch,    (Tex.  Civ.   App.   1893)    21 
S.  \V.  Rep.  62. 

13.  .Tohnsen  v.  Oakland,  etc..  Electric  R.  Co.,  127  Cal.  608,  60  Pac. 

Rep.  170. 

14.  Ward  v.   Chicago,   etc.,  R.   Co.,   85   Wis.   601,   55   N.   W.   Rep. 

771. 

15.  Grand  Rapids,  etc.,  R.  R.  Co.  v.  Huntley,  38  Mich.  537. 


PROOF  OF  SPEED.  I53 

are  necessary  to  an  inference. ^^  As  additional  requirements 
sound  mind  and  judgment  have  been  suggested.^'  Of 
course  one  who  has  timed  automobiles  is  a  competent  wit- 
ness. ^^ 

§  4.  Weight  of  evidence. 

The  testimony  of  an  observer  of  a  passing  automobile 
that  the  machine  was  running  "  fast  "  or  "  slow  "  cannot, 
it  is  said,  be  excluded  merely  because  of  its  indefiniteness.^* 
On  the  other  hand,  it  has  been  declared  that  such  testimony 
"  is  altogether  too  uncertain  for  judicial  action,  and  most 
especially  so  when  there  was  no  collision."  ^'^  It  was  ob- 
served by  Chief  Justice  Campbell  in  Grand  Rapids,  etc., 
R.  R.  Co.  V.  Huntley,  38  Mich.  540,  that  "  opinions  on 
relative  speed  without  some  standard  of  rapidity  are  of  no 
value  by  themselves." 

§5.  Incon'ect estimates. 

Where  an  estimate  is  made  by  a  witness  as  to  the  speed 
of  a  passing  automobile,  the  facts  should  be  stated  upon 
which  the  estimate  is  madc^i  and  in  order  to  give  his  testi- 
mony any  value  it  should  be  shown  that  the  witness  had  ade- 
quate facilities  for  observing  the  automobile's  movement.^^ 
Thus  it  has  been  held  that  passengers  riding  on  a  train  are 
not  competent   to  estimate   from  observation  the   rate  of 


16.  Chicago,  etc.,  R.  Co.  v.  Gunderson,  174  111.  495,  51  N.  E.  Rep. 
70«. 

17.  Chicago,  etc.,  Co.  v.  Clark,  26  Neb.  645,  42  N.  W.  Rep.  703. 

18.  Thomas  v.  Chicago,  etc.,  R.  Co.,  86  Mich.  496,  49  N.  W.  Rep. 
547. 

19.  Illinois  Cent.  R.  R.  Co.  v.  Ashline,  171  111.  313,  49  N.  E.  Rep. 
521. 

20.  Yuigst  V.  Lebanon,  etc.,  R.  R.  Co.,  167  Pa.  St.  438,  31  Atl.  Rep. 
687.  per  Green,  J. 

21.  Union  Pac.  R.  Co.  v.  Ruyicka,  65  Neb.  621,  91  N.  W.  Rep.  543. 

22.  Muth  V.  St.  Louis,  etc.,  R.  Co.,  87  Mo.  App.  422. 


154  THE  LAW  OF  AUTOMOBILES. 

speed  at  which  the  train  traveled.-^  But  such  evidence  has 
been  admitted.-*  It  should  also  be  shown  that  the  facilities 
for  observing  the  speed  were  improved  by  the  witness.^^ 

<!  6.  Imagination. 

The  imagination  is  likely  to  deceive  a  party  as  to  the 
speed  of  an  automobile.  For  example,  a  pedestrian  cross- 
ing a  street  would  be  quite  likely  to  erroneously  estimate 
the  speed  of  an  approaching  automobile,  and  if  run  down  by 
it,  he  would  easily  imagine  that  its  speed  was  suddenly  in- 
creased, or  that  it  had  been  in  no  degree  slackened.^® 

§  7   Line  of  vision. 

The  line  of  vision  is  a  matter  of  great  importance  in  de- 
termining the  speed  of  a  passing  object.  It  would  be  im- 
possible for  an  observer  directly  facing  an  automobile,  ap- 
proaching him  in  a  straight  course,  to  estimate  its  speed 
with  a  degree  of  accuracy  anywhere  near  the  precision  he 
could  attain  if  his  line  of  vision  was  transverse  to  the  direc- 
tion in  which  the  machine  was  moving.  So,  also,  it  would 
be  almost  impossible  to  give  a  correct  estimate  of  the  speed 
where  the  automobile  is  traveling  in  a  direct  line  away  from 
the  observer.^'^ 

23.  Grand  Rapids,  etc.,  R.  Co.  v.  Huntley,  38  Mich.  537,  31  Am. 
Rep.  321. 

24.  Johnson  v.  Oakland,  etc.,  Electric  R.  Co.,  127  Cal.  608,  60  Pac. 
Rep.  170;  Galveston,  etc.,  R.  Co.  v.  Wesch,  (Tex.  Civ.  App.  1893)  21 
S.  W.  Rep.  62. 

25.  Mathieson  v.  Omaha  St.  R.  Co.,  3  Neb.  (Unoff.)  743,  92  N.  W. 
Rep.  639. 

26.  See  remarks  of  Collins,  J.,  In  an  analogous  case.  Schmidt  v. 
New  Jersey  Street  R.  R.  Co.,  49  Atl.  Rep.  438,  and  Dean,  J.,  In 
Gangawer  v.  Phila.,  etc.,  R.  Co.,  168  Pa.  St.  265,  32  Atl.  Rep.  21. 

27.  See  Huntress  v.  Boston,  etc.,  R.  R.  Co.,  66  N.  H.  185,  34  Atl. 
Rep.  154;  Colo.,  etc.,  R.  R.  Co.  v.  Robbins,  71  Pac.  871;  Munster  v. 
Chicago,  etc.,  R.  Co.,  61  Wis.  325,  50  Am.  Rep.  141. 


PROOF  OF  SPEED.  155 

§  8-  Time  consnmed. 

The  duration  of  time  is  a  matter  of  fact  which  concededly 
a  witness  may  state  in  the  form  of  an  estimate,  but  when 
a  witness  gives  his  estimate  of  the  time  consumed  by  the 
automobile  in  passing  from  one  point  to  another,  and  the 
distance  between  the  points  is  ascertained  by  measurement, 
the  testimony  is  not  of  much  weight.  No  experienced  judge 
leans  upon  a  witness'  estimate  of  a  short  period  of  time 
further  than  to  beheve  that  it  was  a  brief  period.  Cases 
on  this  point  are  numerous  and  emphatic.  "  Nothing  is 
more  uncertain  or  unreHable  than  the  testimony  of  witnesses 
as  to  the  time  occupied  in  a  transaction  "  said  Vice-Chan- 
cellor  Green  in  McGrail  v.  McGrail,  48  N.  J.  Eq.  532,  22 
Atl.  Rep.  582.  "  There  is  no  matter  upon  which  witnesses 
are  so  Hkely  to  be  mistaken  as  a  question  of  time,"  said 
Bruce,  J.,  in  The  Wega.  Prob.  Div.  [1895]  156,  159. 
"  People  differ  widely  as  to  the  estimation  of  passing  time — 
particularly  is  this  so  in  naming  minutes  or  seconds  that 
may  be  thought  to  expire  on  any  particular  occasion,"  said 
Gill,  ].,  in  Culberson  v.  Chicago,  etc.,  R.  Co.,  50  Mo.  App. 
556,  562. 

§  9.  Noise. 

The  noise  produced  by  an  automobile  would  be  apt  to 
deceive  a  party  in  his  estimation  of  the  automobile's  speed, 
since  at  very  slow  speeds,  and  even  where  there  is  no  mo- 
tion of  the  vehicle  at  all,  there  are  times  when  the  motor 
runs  very  fast.  This  naturally  would  lead  one  to  believe, 
if  depending  upon  sound  alone,  that  the  automobile  was 
actually  traveling  at  a  rate  of  speed  which  the  motor  could 
produce  with  the  same  noise  The  unreliability  of  testimony 
founded  in  any  way  upon  the  noise  produced  needs  no 
further  argument  to  stamp  such  evidence  as  almost  worth- 
less.   As  bearing  on  this  subject  it  has  been  held  that  a  per- 


156  THE  LAW  OF  AUTOMOBILES. 

son  was  not  competent  to  express  an  opinion  as  to  the  speed 
of  a  car,  founded  upon  the  noise  when  at  a  distance  of 
more  than  one  hundred  and  twenty  feet,  on  a  mere  show- 
ing that  the  witness  had  for  twenty  years  the  common  ex- 
perience of  a  city  man  travehng  on  street  cars.-^  Of  course 
speed  may  be  judged  from  hearing  rather  than  from  sight 


2d 


§  10-  Facts  incompatible  with  estimates. 

Where  the  facts  show  a  conflict  between  an  observer's 
estimate  of  the  automobile's  speed,  the  facts  control.  Esti- 
mates of  speed,  as  in  cases  of  all  other  kinds  of  "  opinion  " 
evidence,  must  give  way  to  testimony  of  cold  matters  of  fact 
and  legitimate  inferences  therefrom.^"  Take  an  example 
where  testimony  to  a  high  degree  of  speed  is  incompatible 
with  the  proved  facts  that  the  machine  was  stopped  within 
a  few  feet,  or  a  short  distance,  the  latter  evidence  must 
prevail.^^  Undoubtedly  the  converse  proposition  is  also 
true  that  an  estimate  of  the  low  rate  of  speed  must  be  over- 
ruled by  indubitable  proof  of  facts  reconcilable  only  with 
high  speed,  such  as  the  force  of  the  impact  of  a  machine 
(Brenan  v.  Metropolitan  St.  R.  Co.,  60  N.  Y.  App.  Div. 
264,  69  N.  Y.  Supp.  1025),  or  the  considerable  distance 
traversed  by  the  machine  despite  efforts  to  bring  it  to  a 
standstill.^2 

28.  Campbell  v.  St.  Louis,  etc.,  R.  Co.,  175  Mo.  161,  75  S.  W.  Rep. 
86.  See  also  Robinson  v.  Louisville  R.  Co.,  112  Fed.  Rep.  484,  50 
C.  C.  A.  357. 

29.  Van  Horn  v.  Burlington,  etc.,  R.  Co.,  59  Iowa  33,  12  N.  W.  Rep, 
752;  Missouri  Pac.  R.  Co.  v.  Hilderbrand,  52  Kan.  284,  34  Pac.  738. 

30.  Muster  v.  Chicago,  etc.,  R.  Co.,  61  Wis.  325,  50  Am.  Rep.  141; 
Retterstrom  v.  Brainsford,  etc.,  R.  Co.,  94  N.  W.  Rep.  882. 

31.  Graham  v.  Consol.  T.  Co.,  54  N.  J.  Law  10,  44  Atl.  Rep.  964; 
Volger  V.  Central,  etc.,  R.  Co.,  83  N.  Y.  App.  Div.  101,  82  N.  Y.  Supp. 
485. 

32.  Railroad  Co.  v.  Bordenchecker,  70  N.  E.  Rep.  995;  Zolpher  v. 
Camden,  etc.,  R.  Co.,  55  Atl.  Rep.  249;  Hoppe  v.  Chicago,  etc.,  R.  Co., 
61  Wis.  357. 


PROOF  OF  SPEED.  157 

§11.  Distance. 

An  estimate  of  speed  necessarily  involves  an  estimate 
of  distance  where  it  is  sought  to  determine  the  mathe- 
matical rate  of  speed.  However,  estimates  of  distance  are 
perhaps  even  less  trustworthy,  in  point  of  absolute  ac- 
curacy, than  estimates  of  speed.  In  Zolpher  v.  Camden, 
etc.,  R.  Co.,  55  Atl.  Rep.  249,  estimates  of  various  wit- 
nesses ranged  all  the  way  from  three  feet  to  forty  feet,  and 
in  Cannon  v.  Pittsburg,  etc.,  B.  T.  Co.,  195  Pa.  St.  159, 
44  Atl.  Rep.  1089,  the  extreme  estimates  were  sixty  feet 
and  one  hundred  and  forty  feet. 

§  12.  Speed  at  one  place  inadmissible  as  to  speed  at  another. 

Is  testimony  to  speed  of  a  machine  at  one  place  admissible 
on  the  question  of  speed  in  another  place  on  the  same 
road?  It  is  safe  to  say  that  ordinarily  it  would  not  be 
relevant.  If,  however,  it  were  conceded — ^by  the  chauffeur, 
for  instance — that  the  speed  had  not  been  accelerated  or 
diminished,  as  the  case  may  be,  between  the  two  points, 
such  testimony  would  be  clearly  admissible.^^ 

§  13.  Effect  of  bias. 

Bias  of  witnesses  is  one  of  the  most  pestiferous  factors 
with  which  courts  have  to  deal  in  weighing  testimony. 
Where  it  is  sought  to  prove  that  an  automobile  was  running 
at  an  unreasonable  speed,  or  at  a  speed  prohibited  by  statute 
or  ordinance,  it  is  highly  probable  that  witnesses  who  volun- 
tarily testify  against  the  motorist  will  be  biased,  considering 
the  present  state  of  public  opinion  in  some  localities.  Courts 
frequently  take  judicial  notice  of  prejudice  that  usually 
exists  against  corporations,  and  it  may  be  presumed  that 
they  would  take  like  cognizance  of  The  animosity  against 

33.  Louisville,  etc.,  R.  Co.  v.  Jones,  108  Ind.  551,  9  N.  E.  Rep.  476. 


158  THE  LAW  OF  AUTOMOBILES. 

automobilists.  At  any  rate  the  partisanship  of  witnesses 
testifying  to  excessive  rates  of  speed  is  hkely  to  crop  out 
in  their  testimony  so  as  to  justify  the  trier  of  fact  in  putting 
them  in  the  category  of  biased  witnesses.  Now,  what  is 
the  rule  in  weighing  the  testimony  of  such  witnesses?  So 
far  as  it  pertains  to  the  present  discussion  the  rule  is  this : 
In  matters  of  opinion  the  witness  is  to  be  distrusted.^* 
The  term  opinion  includes  estimates  of  time,  distance, 
speed,  etc.  In  practice  judges  should  give  very  little  weight 
to  the  opinions  of  biased  witnesses;  for  besides  the  un- 
conscious operation  of  bias  in  warping  the  judgment  of 
an  honest  witness,  an  effect  universally  conceded,  bias  may 
readily  have  a  more  sinister  influence  in  view  of  the  fact 
that  it  is  virtually  impossible  to  obtain  a  conviction  for 
perjury  in  falsely  testifying  to  an  opinion.  Bias  of  a  wit- 
ness, which  we  have  already  noticed,  when  he  speaks  of 
minutes  or  seconds  not  measured  by  a  timepiece,  is  always 
certain  to  perturb  his  judgment.  Ridge  v.  Penn.  R.  R.  Co., 
58  X.  J.  Eq.  172,  43  Atl.  Rep.  275,  furnishes  an  excellent 
illustration.  There  an  injunction  was  sought  against  a 
railroad  company  to  restrain  it  from  maintaining  a  nuisance 
at  a  city  crossing  by  suffering  its  freight  trains  to  block 
the  highway  for  an  unreasonable  time.  Many  witnesses 
on  each  side  testified  to  the  length  of  time  which  they  were 
compelled  to  wait  on  various  occasions.  One  witness  swore 
by  his  watch.  That  was  very  good  evidence.  Vice-Chan- 
cellor  Reed  intimated  that  other  witnesses  in  the  service  of 
the  company  or  related  to  some  one  in  such  service  would 
be  disposed  to  overlook  any  discomfort  from  obstruction  by 
trains  and  would  underestimate  the  delay.  On  the  other 
side,  angry  pedestrians  who  were  in  a  hurry  to  get  to  their 


34.  Lockwood  v.  Lockwood,  2  Curt.  Eccl.  281,  289,  per  Dr.  Lush- 
Ington. 


PROOF  OF  SPEED. 


159 


business  or  other  destination  would  exaggerate  the  time  of 
waiting. 

§  14.  Burden  of  proof. 

But,  it  may  be  replied,  if  witnesses  are  biased  in  favor 
of  the  prosecution,  it  is  also  certain  that  the  chauffeur  or 
occupants  of  the  automobile  are  decidedly  interested  in  their 
own  behalf,  and  that  their  testimony  is  equally  unreliable — 
that  all  are  "  in  the  same  boat,"  as  the  phrase  goes.  This 
may  be  conceded.  The  burden  of  proof,  however,  is  on  the 
prosecution,  and  if  it  can  do  no  better  than  to  leave  the  evi- 
dence in  equipoise — if  it  cannot  produce  a  preponderance 
of  credible  evidence,  or  proof  beyond  a  reasonable  doubt, 
as  is  required  for  a  conviction  in  criminal  cases — then, 
according  to  the  familiar  rule,  the  prosecution  fails  to  estab- 
lish its  contention. 

§  15.  Evidence  under  English  law. 

The  English  Motor  Car  Act  provides  that  no  person  shall 
be  convicted  of  driving  an  automobile  over  the  rate  of  20 
miles  an  hour  merely  on  the  opinion  of  one  witness  as  to 
the  rate  of  speed.  Upon  the  hearing  of  an  information 
under  Section  9  of  this  act,  for  driving  an  automobile  on 
a  public  highway  at  a  speed  exceeding  20  miles  an  hour,  a 
police  sergeant  proved  that  he  placed  a  police  constable  at 
a  certain  point  on  the  road  and  stationed  himself  on  the 
same  road  at  a  distance  of  a  quarter  of  a  mile  from  the  con- 
stable; that  when  the  automobile  passed  the  constable  the 
constable  signaled  to  him,  and  he  immediately  started  the 
second  hand  of  his  stop  watch  and  stopped  the  same  when 
the  car  passed  him,  and  that  the  time  taken  by  the  car  be- 
tween the  two  points,  as  shown  by  the  stop  watch,  was 
31  2-5  seconds,  or  at  the  rate  of  28  miles  an  hour.  The 
stop  watch,  was  produced  in  court  and  not  objected  to.    The 


160  THE  LAW  OF  AUTOMOBILES. 

only  evidence  as  to  the  rate  of  speed  was  that  of  the  pohce 
sergeant,  who  gave  evidence  of  the  time  as  shown  by  his 
stop  watch.  The  defendant  was  convicted.  On  appeal  it 
was  held  that  the  evidence  of  the  police  sergeant  was  not 
evidence  of  his  "  opinion  "  merely,  but  was  evidence  of  the 
fact  recorded  by  his  stop  watch  as  to  the  time  taken  in 
traveling  over  the  distance,  and  that,  therefore,  the  de- 
fendant was  not  convicted  "  merely  on  the  opinion  of  one 
witness  as  to  the  rate  of  speed  "  within  the  meaning  of 
Section  9,  sub-section  i,  of  the  act.  See  Plancq  v.  Marks, 
K.  B.  D.;94L.  T.  577. 

§  16.  Evidence  that  vehicle  ''went  fast." 

Evidence  that  a  vehicle  '*  went  fast  "  is  no  proof  that  its 
speed  was  excessive.  There  must  be  testimony  showing  a 
breach  of  the  standard  of  speed,  and  no  jury  can  have 
the  liberty  to  deal  with  such  a  question  unless  there  is 
practical  evidence  in  the  case  upon  the  subject.  Starr  v. 
Schenck,  25  Mont.  L.  Rep.  (Pa.)  18. 

§  17.  High  rate  of  speed. 

Where,  in  an  action  against  a  street  railroad  for  in- 
juries to  one  who  was  struck  by  a  car,  the  undisputed  evi- 
dence showed  that  the  car  was  running  at  a  high  rate  of 
speed  at  the  time  of  the  accident,  it  was  not  error  to  refuse 
to  strike  out  the  testimony  of  a  witness  that  the  car  was 
running  at  the  rate  of  20  miles  an  hour  at  the  time  of  the 
accident,  the  witness  stating  on  cross-examination  that  he 
knew  it  was  going  at  that  rate  because  he  knew  it  to  go 
"  very  fast  out  there."  The  same  ruling  applies  to  an  auto- 
mo1)ile.     Fxkels  v.  Muttschall.  R2  N.  K.  Rep.  872. 

Where  the  Plaintiff  is  the  only  witness  that  the  speed 
of  defendant's  automobile  was  excessive,  and  that  he  sig- 


PROOF  OF  SPEED.  161 

nailed  him  to  stop,  and  is  conitradicted  by  the  defendant  and 
four  witnesses  and  there  is  ground  for  the  contention  that 
the  accident  was  caused  by  the  fright  of  the  horse,  but  no 
evidence  that  such  fright  was  caused  by  the  defendant's 
automobile,  a  new  trial  will  be  granted  on  verdict  for  the 
plaintiff.     Siberman  v.  Huyette,  22  Mont.  39. 

§  18.  Comparative  amount  of  noise. 

Testimony  as  to  the  comparative  amount  of  noise  made 
by  different  makes  of  automobiles,  based  upon  comparisons 
made  by  the  witness,  was  properly  excluded  where  there 
was  no  proof  of  the  condition  of  the  machines  with  which 
the  test  was  made.  Porter  v.  Buckley,  147  Fed.  Rep.  140, 
78  C.  C.  A.  138. 

§  19.  Distance  in  which  object  could  be  seen. 

Evidence  as  to  the  speed  of  an  automobile  necessarily  in- 
volves an  estimation  of  distance,  so  it  is  of  importance  to 
the  automobilist  who  has  a  speed  case  to  defend  to  under- 
stand what  testimony  is  admissible  bearing  upon  distance. 
In  Arkansas  &  L.  R'way  v.  Sanders,  99  S.  W.  Rep.  1109, 
it  was  held  that  after  pointing  out  the  place  of  the  accident 
to  plaintiff,  it  was  not  error  to  permit  witnesses  to  testify 
as  to  the  distance  the  driver  of  a  vehicle  could  have  seen 
the  object  struck. 

§  20-  Meeting  horses. 

On  a  trial  for  a  violation  of  the  Wisconsin  Laws  of 
1905,  p.  469,  c.  305,  Sec.  4,  requiring  the  operator  of  an 
automobile,  under  certain  conditions,  to  stop,  evidence  of 
the  speed  of  the  automobile  at  the  time  of  approaching  and 
meeting  the  complainant  may  be  proper.  McCummins  v. 
State,  112  N.  W.  Rep.  25. 
11 


102  THE  LAW  OF  AUTOMOBILES. 

S  21.  Passenger  in  automobile. 

The  fact  that  a  witness  was  a  passenger  in  an  automo- 
bile does  not  render  him  incompetent  to  certify  as  to  its 
speed.  Goodes  v.  Lansing  &  Suburban  Traction  Company, 
114  N.  W.  Rep.  338. 

1^  22-  Summary  and  conclusion. 

The  conclusion  is  that  evidence  of  speed  consisting  of 
mere  opinions  of  witnesses  is  very  unsatisfactory  where  ac- 
curate knowledge  is  essential,  especially  if  the  witnesses 
are  biased;  that  it  is  inferior  in  weight  to  inferences  de- 
rived from  significant  and  well-established  facts;  and  that 
the  best  evidence  is  the  testimony  of  a  witness  who  noted 
the  time  by  a  speed  indicator,  or  by  a  stop  watch  on  a 
measured  course.  Where  the  speed  indicator  of  an  automo- 
bile and  the  stop  watch  of  an  officer  conflict  as  to  the  rate 
of  speed,  assuming  that  both  instruments  are  accurate,  it 
would  seem  that  the  speed  indicator  should  control  the 
determination  of  the  speed,  since  it  is  purely  mechanical 
and  involves  no  judgment,  while  the  stop  watch  is  not  auto- 
matic so  to  speak,  but  requires  action  on  the  part  of  the 
officer  and  some  judgment  in  using  the  watch.^^ 

35.  A  statement  cannot  be  given  in  evidence  where  it  is  not  based 
upon  adequate  observation  and  capacity  for  co-ordination,  but  is 
arrived  at  merely  as  the  result  of  a  mathematical  calculation  made 
after  the  event.  Mathieson  v.  Omaha  St.  R.  Co.,  (Neb.  1903)  97  N.  W. 
Rep.  243. 


CHAPTER  XIV. 

UNLAWFUL  SPEEDING  ON  THE  PUBLIC  HIGHWAYS. 

Sec.  1.  Common  law  misdemeanor. 

2.  Misdemeanor  under  automobile  laws. 

3.  Faster  than  common  traveling  pace. 

4.  Criminal  responsibility  for  agent's  driving. 

5.  Liability  of  parties  not  driving. 

6.  Persons  in  tonneau. 

7.  Aiding  and  abetting. 

8.  Identification  of  offender. 

9.  Prosecution  on  more  than  one  charge. 

10.  Violation  of  municipal  ordinance. 

11.  Obstructing  police. 

12.  Excuses  for  speeding. 

13.  Breaking  speed  laws  in  cases  of  "  necessity." 

14.  Intention. 

15.  Ignorance  of  the  law. 

16.  Graduation  of  punishment. 

17.  What  a  conviction  means. 

§  1.  Common  law  misdemeanor. 

To  operate  a  vehicle  along  a  public  road  or  street,  greatly 
to  the  danger  and  inconvenience  of  all  persons  traveling 
along  said  highway,  is  such  a  wrong  as  injuriously  affects 
the  rights  of  the  public,  who  are  entitled  to  travel  along 
such  public  thoroughfare,  laid  out  and  kept  up  by  the  pub- 
lic for  their  convenience  and  accommodation,  without  ex- 
posure to  such  danger  and  inconvenience.  While  any  per- 
son may  drive  his  vehicle  at  such  speed  as  he  may  please, 
yet,  in  enjoying  the  privilege  of  free  use  of  his  property, 
he  has  no  right  to  expose  others  to  injury  or  to  infringe 
upon  the  rights  of  the  general  public.  Running  and  racing 
a  vehicle  along  a  public  road,  no  necessity  being  shown  for 

[163] 


1(54:  THE  LAW  OF  AUTOMOBILES. 

such  speed,  is  not  tlie  ordinary  and  proper  mode  in  wliicli 
such  roads  are  used  by  prudent  men.  They  were  not  in- 
tended, bv  the  very  purpose  for  which  they  are  opened  and 
kept  up,  for  any  such  use,  but  for  the  ordinary  and  usual 
travel  of  the  public.  Speeding  and  racing  on  the  public 
highways  are  well  calculated  to  disturb  public  order  and 
the  public  rights  are  violated. 

To  run  a  race  on  a  public  highway  or  to  excessively 
speed  a  vehicle,  to  the  danger  and  inconvenience  of  people, 
is  a  common  law  misdemeanor.  It  is  proper  to  add,  that 
there  may  be  necessity  for  riding  at  high  speed  along  even 
the  public  road,  as  in  cases  of  sickness,  or  to  give  a  neighbor 
notice  of  great  personal  danger  to  his  property.  Such  ne- 
cessity is  a  matter  of  defense.^ 

1.  Speeding  misdemeanor  under  common  la%i7. — State  V. 
Battery,  6  Baxt.  (Tenn.)  545.     See  also  Redman  v.  State,  33  Ala.  428. 

A  right  of  highway  does  not  include  a  right  of  racing,  and  a  person 
■who  had  been  a  party  to  a  hurdle  race  is  jointly  liable  for  putting 
the  hurdles  on  the  ground,  although  he  took  no  actual  part  in  the 
race. — Sowerby  v.  Wadsworth,  3  F.  &  F.  734. 

That  horse  racing  is  illegal,  see:  State  v.  Burgett,  Smith  340; 
Watson  V.  State,  3  Ind.  123;  Robb  v.  State,  52  Ind.  218;  State  v. 
Fleetwood,  16  Mo.  448;  State  v.  Wagston,  75  Mo.  107;  Goldsmith  v. 
State,  38  Tenn.    (1   Head)    154;    State  v.  Catchings,  43   Tex.  654. 

It  is  an  offense  for  a  person  to  permit  his  vehicle  to  be  run  in  a 
race  on  a  public  highway,  and  a  separate  offense  for  a  person  to  act 
as  a  driver  in  such  a  race. — State  v.  Ness.,  1  Ind.  (1  Cart.)  64;  see 
also  Watson  v.  State,  3  Ind.  123;  State  v.  Fidler,  26  Tenn.  (7  Hump.) 
502;  Goldsmith  v.  State  (38  Tenn.  1  Head  154,  holding  that  a  bet  or 
a  wager  is   immaterial. 

A  right  of  highway  does  not  include  a  right  to  race,  and  a  person 
who  had  been  a  party  to  a  hurdle  race  is  jointly  liable  for  putting 
the  hurdles  on  the  ground,  although  he  took  no  actual  part  in  the 
'race.— Sowerby  v.  Wadsworth,  3  F.  &  F.  734. 

Speed  at  crossing. — In  a  city  ordinance  limiting  the  speed  of 
automobiles  on  "streets"  of  city  and  at  "crossings,"  the  word 
"  crossings  "  refers  to  street  crossings. — Eichman  v.  Buchhelt,  128 
Wis.  385. 

Necessity   for  »ignm  indicating    reduction    of   speed.  — A    city 


UNLAWFUL  SPEEDING  ON  THE  PUBLIC  HIGHWAYS.    165 

§  2.  Misdemeanor  under  automobile  laws. 

Under  the  automobile  laws  the  offense  of  driving  an 
automobile  at  an  excessive  rate  of  speed  not  being  punish- 

ordinance  limiting  the  speed  at  which  automobiles  may  be  run  in 
certain  portions  of  a  city  is  not  rendered  invalid  for  uncertainty 
by  the  fact  that  it  makes  no  provision  for  the  erection  of  signs  at 
points  where  areas  of  limited  speed  begin. — Eichman  v.  Buchheit, 
128  Wis.  385. 

Private  track  racing. — Generally  speaking,  one  has  the  right  to 
do  as  he  pleases  with  and  upon  his  own  private  property,  and  it  is 
apparently,  at  least,  by  virtue  of  this  right  of  property  that  public 
automobile  races  are  said  to  be  permissible  on  private  tracks.  But 
is  private  race  track  racing  any  more  "  legal  "  than  racing  on  the 
public  highways?  Danger,  morality,  public  policy,  statutory  and 
common  law,  all  prohibit  speed  contests  on  the  public  ways.  A 
private  way  stands  in  no  different  position,  except  that  the  ground 
over  which  the  automobile  race  is  conducted  is  private  and  belongs 
to  one  or  more  individuals.  But,  even  though  the  race  track  is 
private,  nevertheless,  does  it  not  constitute  a  public,  or  at  least  a 
QMOsf-public,  place?  If  so,  can  it  be  considered  at  all  different  to 
the  public  highway  in  so  far  as  the  question  of  automobile  racing 
is  concerned?  The  public  is  invited  to  the  private  track;  it  is  urged 
to  come  by  the  thousands  to  see  the  "  death  daring  "  drivers,  and, 
it  may  be  added,  in  most  cases  to  witness  violent  death.  We  have 
seen  from  experience  that  automobile  racing,  no  matter  where  con- 
ducted, inevitably  leads  to  injury  and  death.  Would  a  bull  fight  be 
sanctioned  in  the  United  States?  Is  dueling  lawful?  Compare  auto- 
mobile racing,  with  its  slaughter,  its  gambling,  betting  and  con- 
tagious speed  mania,  with  bull  fighting,  prize  fighting  and  dueling, 
and  who  can  say  which  is  the  more  harmful?  Then  again,  the 
example  which  the  automobile  driver  sets  by  recklessly  placing  his 
life  in  jeopardy  is  bad,  especially  on  youth,  which  is  not  debarred 
from  witnessing  auto-homicdal  spectacles.  Moreover,  we  find  that 
such  race  tracks  may  be  constructed  with  utter  disregard  for  the 
safety  of  spectators.  There  are  no  state  or  municipal  regulations 
governing  automobile  speed  contests  upon  private  tracks,  because  ex- 
hibitions of  this  kind  are  comparative  "  sporting  "  innovations,  and 
law  makers  have  not,  until  recently,  at  least,  been  impressed  with  the 
necessity  for  legislation.  But  laws  which  will  either  prohibit  or  so 
regulate  them  that  some  of  their  worst  features  will  be  done  away 
with  will  come,  if  indeed,  the  track  racing  mania  does  not  die  of  its 
own  excesses  without  even  a  coroner's  inquest  to  determine  the  cause. 


166  THE  LAW  OF  AUTOMOBILES. 

able  by  imprisonment  in  the  state  prison,  but  by  a  fine, 
is  a  misdemeanor  and  not  a  felony.  Com.  v.  Sherman,  191 
Mass.,  439;  78  N.  E.  Rep.,  98. 

§  3.  Faster  than  common  traveling  pace. 

A  most  interesting  legal  question  has  just  been  decided 
by  the  Supreme  Court  of  Rhode  Island.  An  automobilist 
was  prosecuted  under  an  old  Rhode  Island  statute  wiiich 
prohibited  persons  driving  vehicles  faster  than  "  a  common 
traveling  pace."  Just  exactly  what  a  common  traveling 
pace  is  or  should  be  was  the  fact  for  determination  by  the 
court.  Since  we  have  in  our  automobile  laws  specific  pro- 
hibitions against  unreasonable  and  dangerous  driving,  the 
decision  of  the  Rhode  Island  Supreme  Court  is  important 
and  instructive.     The  opinion  of  the  court  says: 

"  It  is  clearly  evident  that  the  safety  of  the  traveling  pub- 
lic was  the  object  sought  by  the  act.  Such  safety  could 
not  be  attained  by  permitting  each  vehicle,  each  horse  or 
other  thing,  which  could  be  ridden  or  driven,  to  go  at  a 
traveling  pace  possible  to  it.  There  could  not  be,  with  safety 
to  the  traveling  public  on  foot,  on  horseback  or  in  car- 
riages, a  traveling  pace  for  each  individual  who  rode  in  the 
streets  or  highways,  fixed  only  by  the  rate  of  speed  possible 
to  the  animal  or  thing  which  he  rode  or  drove.  Safety 
could  not  be  attained  only  by  requiring  all  to  use  that  pru- 
dence and  caution  in  the  matter  which  was  ordinarily  used 
by  prudent  and  reasonable  men  when  driving  in  the  streets 
or  highways  of  thickly  settled  towns;  that  is,  a  pace  which 
was  reasonable  and  proper,  considering  the  place  and  cir- 
cumstances, a  pace  which  was  recognized  by  reasonable  men 
as  a  common  traveling  pace.  State  v.  Smith,  69  Atl.  Rep., 
io6i."2 


2.  Laws  wUch  create  crimes,  ought  to  be  so  explicit  in  them- 
selves, as  by  reference  to  some  known  standard,  so  that  all  may  know 


UNLAWFUL  SPEEDING  ON  THE  PUBLIC  HIGHWAYS.    167 

§  4.  Criminal  responsibility  for  agent's  driving. 

Under  the  Pennsylvania  Act  of  April  19,  1905,  regulating 
the  speed  of  automobiles,  the  record  of  a  justice  will  not 
be  sustained  if  there  is  nothing  to  connect  the  defendant 
with  the  car  or  the  act.  The  owner  of  an  automobile  will 
not  be  liable,  if  it  is  used  without  his  knowledge,  or  his 
consent ;  otherwise,  he  could  be  sent  to  jail  for  an  act  done 
without  his  knowledge,  by  persons  for  whose  acts  he  would 
not  be  responsible.  Comm.  v.  Bacon,  24  Mont.  L.  Rep. 
(Pa.)  197. 

§  5.  Liability  of  parties  not  driving. 

An  English  automobilist  was  convicted  of  unlawfully- 
driving  his  motor  car  at  a  speed  dangerous  to  the  public. 
At  the  hearing  of  the  case  on  appeal  there  was  a  conflict 
of  evidence  as  to  whether  the  car  was  being  driven  by  the 
appellant  or  by  a  lady  seated  by  his  side  in  the  car.  The 
court,  without  deciding  who  was  driving  the  car,  dismissed 
the  appeal,  at  the  same  time  finding  in  fact  that  if  the  lady 
was  driving  she  was  doing  so  with  the  consent  and  approval 
of  the  appellant,  who  must  have  known  that  the  speed  was 
dangerous,  and  who,  being  in  control  of  the  car,  could  and 
ought  to  have  prevented  it.  The  court  found  that  there 
was  evidence  on  which  the  appellant  could  be  convicted  of 
aiding  and  abetting  the  commission  of  a  crime.  Du  Cros 
v.  Lambourne,  Div.  Ct.  40. 

§  6.  Persons  in  tonnean. 

In  a  prosecution  for  operating  an  automobile  at  an  exces- 
sive rate  of  speed,  proof  that  the  machine,  which  was  regis- 
tered with  the  Massachusetts  Highway  Commission  by  the 


what  they  prohibit  and  all  men  may  know  what  it  is  their  duty  to 
avoid.     U.  S.  v.  Sharp,  1  Pet.  C.  C.  Rep.  118. 


168  THE  LAW  OF  AUTOMOBILES. 

defendant  in  his  own  name,  was  being  run  by  the  operator 
at  an  illegal  speed  while  the  defendant  was  in  the  tonneau, 
established  prima  facie  that  the  defendant,  having  power 
to  control  the  machine,  either  knew  or  allowed  it  to  be  il- 
legally run,  and  was  therefore  guilty.  Com.  v.  Sherman, 
191  Mass.,  439;  78  N.  E.  Rep.,  98. 

§  7.  Aiding  and  abetting. 

A  person  who  is  prosecuted  for  driving  an  automobile 
at  a  speed  dangerous  to  the  public  may  be  convicted,  al- 
though it  may  appear  that  he  was  not  actually  driving  at 
the  time,  but  was  in  fact  aiding  and  abetting  the  commis- 
sion of  the  offense.  Buford  v.  Sims  (67  L.  J.  A.  B.  655; 
[1898]  2  A.  B.  641).  Du  Cros  v.  Lambourne,  Law  J. 
Rep.  1907  (K.  B.  D.)  50. 

§  8.  Identification  of  offender. 

There  can  be  no  conviction  for  violating  the  speed  law 
where  the  only  evidence  to  connect  the  defendant  with  the 
case  is  the  fact  that  according  to  the  automobile  register  a 
machine  having  the  same  number  as  the  one  used  in  viola- 
tion of  the  law  belongs  to  the  defendant.  Scranton  v.  Haw- 
ley,  9  Lack.  (Pa.)  65. 

§  9.  Prosecution  on  more  than  one  charge. 

Frequently  an  automobile  driver  is  arrested  for  over- 
speeding,  and  when  formal  complaint  is  made  against  him. 
he  not  only  faces  a  charge  of  exceeding  the  speed  limit,  but 
sometimes  is  held  to  answer  another  accusation  of  "  dan- 
gerous driving."  Especially  is  this  the  case  where  there 
were  aggravating  circumstances  connected  with  the  alleged 
offense  or  the  arrest. 

Necessarily  in  many  instances  the  operation  for  an 
automobile  at  a  great  speed  on  the  public  highways,  consti- 


UNLAWFUL  SPEEDING  ON  THE  PUBLIC  HIGHWAYS.    169 

tutes  "  dangerous  driving,"  but  where  the  pubhc  prosecutor 
complains  against  the  defendant  for  dangerous  driving  and 
has  him  convicted  on  that  charge,  it  is  not  within  his  power 
to  convict  the  accused  on  the  charge  of  exceeding  the  speed 
limit,  notwithstanding  the  fact  that  in  America,  particu- 
larly New  York  city,  this  is  the  custom  of  the  District  At- 
torney's office.  This  practice  is  illegal  for  the  following- 
reason  : 

If  the  court  takes  into  consideration  the  speed  of  the  au- 
tomobile on  the  hearing  of  the  dangerous  driving  charge, 
and  if  the  defendant  is  then  prosecuted  on  the  second  charge 
of  violating  the  speed  limit,  he  is  placed  in  jeopardy  twice, 
which  is  prohibited  by  all  our  State  constitutions  and  the 
common  law.  See  Welton  v.  Tanebourne  (Div.  Ct.  Eng, 
873,  Vol  XXIV,  Law  Times  Rep.  No.  36,  p.  873). 

§  10.  Violation  of  municipal  ordinance. 

Where,  in  a  prosecution  for  operating  an  automobile  at 
a  speed  in  excess  of  that  prescribed  by  the  by-laws  of  a 
town,  it  was  agreed  that  such  by-laws  were  "  duly  estab- 
lished," such  stipulation  admitted  that  the  by-laws  were  ad- 
vertised and  posted  as  provided  by  Mass.  Stat.,  1905,  p. 
289,  ch.  366,  Section  i,  and  that  they  were  made  as  author- 
ized by  such  act,  and  that  the  place  covered  by  them  was 
within  the  thickly  settled  part  of  the  town.  Com.  v.  Sher- 
man, 191  Mass.,  439;  78  N.  E.  Rep.,  98. 

§11.  Obstructing  police. 

Two  constables  in  England,  having  measured  certain  dis- 
tances on  a  road  much  frequented  by  automobiles,  were 
watching  in  order  to  ascertain  the  pace  at  which  each  car 
passed  over  the  measured  distance,  with  a  view  to  discov- 
ering whether  it  was  proceeding  at  an  illegal  rate  of  speed. 
An  automobilist  was  arrested,  but  he  gave  warning  of  the 


170  THE  LAW  OF  AUTOMOBILES. 

police  trap  to  approaching  cars,  which  then  slackened  sf>eed. 
There  was  no  evidence  that  the  accused  was  acting  in  con- 
cert with  any  of  the  drivers  of  the  cars,  or  that  any  car 
when  the  warning  was  given  was  going  at  an  illegal  pace. 
The  court  held  that  the  defendant  was  not  guilty  of  the 
offense  of  obstructing  the  officers  in  the  execution  of  their 
duties.    Bastable  v.  Little,  Div.  Ct.,  59. 

§  12.  Excuses  for  speeding. 

Many  and  various  are  the  excuses  that  are  offered  by 
drivers  accused  of  speeding,  the  following  being  a  few  of 
those  most  commonly  given :  There  was  a  sick  person  in 
the  car ;  a  physician  was  speeding  to  the  bedside  of  a  patient ; 
it  was  raining  hard;  the  car  was  speeded  up  temporarily 
to  get  out  of  the  dust  of  the  car  ahead.  In  some  instances 
magistrates  and  judges  have  discharged  motorists  for  one 
of  the  above  reasons,  while  in  other  cases  they  have  utterly 
refused  to  listen  to  excuses  of  this  nature.  May  there  not 
be  circumstances  under  which  the  operation  of  an  automo- 
bile at  excessive  speed  is  excusable  morally  and  legally,  and 
which  is  the  proper  course  for  a  judge  to  pursue? 

The  various  State  automobile  laws  say  that  motor  ve- 
hicles shall  not  be  driven  faster  than  certain  rates  of  speed. 
There  are  no  exceptions  or  provisos  in  these  laws  permitting 
the  speed  limits  to  be  exceeded  under  any  circumstances, 
consequently  there  exists  no  judicial  discretion  to  discharge 
arrested  automobilists  on  any  of  the  grounds  mentioned; 
however,  since  all  laws  must  be  enforced  by  means  of  hu- 
man agency,  "  humanity  "  must  necessarily  enter  into  the 
execution  of  any  particular  statute.  It  should  not  be  for- 
gotten that  "  intention  "  has  no  place  in  violations  of  the 
speed  law.  Whether  the  arrested  automobilist  "  knew  " 
that  he  was  exceeding  the  speed  limit  makes  no  difference 
in  regard  to  his  innocence  or  guilt.     The  law  says  that  he 


UNLAWFUL  SPEEDING  ON  THE  PUBLIC  HIGHWAYS.    171 

who  operates  an  automobile  drives  it  at  his  peril  if  he  ex- 
ceeds the  speed  limit.  But  there  is  certainly  an  unfairness 
in  "  trapping  "  an  automobilist  who  does  not  intentionally 
speed  for  the  sake  of  creating  a  race  or  showing  off.  Just 
what  to  do  to  prevent  oppression  by  officers  of  the  law  on 
the  one  hand  and  to  curb  reckless  automobiling  on  the  other 
is  the  great  question. 

Speed  traps  and  the  practice  of  convicting  automobilists 
on  mere  "  seconds  "  and  "  mathematics  "  should  be  abol- 
ished. Yet  alertness  on  the  part  of  the  protectors  of  the 
public  safety  should  not  be  discouraged.  Where  will  we 
strike  the  happy  medium?  Connecticut  is  said  to  have 
solved  the  problem,  but  this  may  be  doubted.  In  that  State 
danger  to  the  public  is  the  test  up  to  25  miles  an  hour,  and 
it  is  rather  difficult  to  produce  evidence  establishing  dan- 
gerous driving  when  it  did  occur. 

First,  and  above  all,  a  limited  discretion  should  be  given 
magistrates  and  judges  to  excuse  those  arrested  for  speed- 
ing who  present  plausible  and  bona  fide  reasons  in  mitiga- 
tion of  the  offense  and  where  the  arrest  is  purely  technical. 
Secondly,  no  automobile  driver  should  be  convicted  on  the 
uncorroborated  evidence  of  one  person  using  a  stop  watch 
or  otherwise  estimating  the  time.  Secret  evidence,  wholly 
within  the  possession  of  one  party,  should  not  be  permitted 
to  convict  a  defendant.  The  opportunity  to  ascertain  the 
correctness  of  this  evidence  upon  cross-examination  is 
slight. 

As  a  general  proposition  of  jurisprudence  the  rule  should 
be  that  an  excessive  speed  may  be  permitted  where  the  ob- 
ject is  to  avoid  a  greater  danger  than  involved  in  the  speed- 
ing. Legislation  based  upon  this  theory  and  granting  a 
limited  discretion  to  magistrates  and  judges  would  be  com- 
mendable. 


172  THE  LAW  OF  AUTOMOBILES. 

§  13.  Breaking  speed  laws  in  cases  of  "necessity." 

Is  there  any  justification  for  breaking  automobile  speed 
laws  in  cases  of  extreme  urgency?  As  examples  of  such 
cases  we  have  that  of  a  physician  hastening  to  the  bedside 
of  a  patient  in  a  critical  condition;  that  of  a  fire  chief  in 
a  big  city  hurrying  to  a  fire  in  an  automobile,  and  that  of 
a  country  automobile  ambulance,  which,  owing  to  the  na- 
ture of  its  service,  must  necessarily  proceed  with  all  possible 
haste.  In  all  such  emergency  cases  it  is  a  question  of  the 
protection  of  either  life  or  property  that  seems  to  warrant 
the  violation  of  speed  regulations.  But  though  there  may 
be  a  moral  excuse  for  driving  at  an  excessive  rate  of  speed 
when  either  life  or  property  is  in  danger,  the  automobile 
laws  do  not  legally  exempt  anyone  from  complying  with 
the  speed  limitations,  except  in  a  few  jurisdictions,  as,  for 
instance,  in  Xew  Jersey,  where  military  motor  vehicles  in 
use  for  official  purposes,  in  time  of  riot,  insurrection  or  in- 
vasion, are  exempt  from  the  provisions  of  the  law  pertain- 
ing to  speed.  This  is  the  only  express  exemption  in  the 
New  Jersey  act,  and  it  is  notable  that  physicians  are  not 
exempted  from  complying  with  the  speed  limit,  though  they 
are  not  liable  to  arrest  when  responding  to  an  emergency 
call,  but  are  compelled  to  give  their  registration  number  and 
the  number  of  their  driver's  license. 

From  a  legal  standpoint  there  should  be  no  exemption 
from  the  speed  laws,  and  if  we  consider  the  subject  from  a 
moral  standpoint  we  arrive  at  the  same  conclusion,  for 
it  is  hardly  justifiable  to  endanger  life  or  property  in  an  at- 
tempt to  protect  either.  Even  though  a  sick  person  may  be 
greatly  in  need  of  immediate  medical  attention,  the  danger 
to  which  he  is  exposed  does  not  warrant  the  greater  danger 
that  would  be  created  on  the  public  highways  by  fast  driv- 
ing of  the  physician.  Again,  it  would  be  unjustifiable  to 
create  a  danger  to  the  large  number  of  persons  using  the 


UNLAWFUL  SPEEDING  ON  THE  PUBLIC  HIGHWAYS.    173 

Streets  in  order  to  lessen  the  danger  of  a  single  person. 
When  the  present  laws  were  enacted  no  doubt  all  possible 
conditions  were  considered,  including  the  cases  of  the  phy- 
sician, the  ambulance  and  the  fire  chief.  If  the  Legislature 
deems  it  wise  to  make  an  exception  in  favor  of  any  class 
of  persons  it  has  the  power  to  do  so,  and  law  making  bodies 
have  made  such  exceptions  in  some  cases;  but  where  the 
law  does  not  make  any  express  exemption  the  courts  have 
no  right  to  accord  any,  and  no  class  of  persons  can  expect 
to  be  immune  from  the  provisions  of  the  law  by  reason  of 
the  particular  circumstances  of  the  case. 

§  14.  Intention. 

Intention  in  violating  the  automobile  regulations  is  im- 
material. The  purpose  of  the  restrictions  is  to  protect  the 
public  and  the  acts  prohibited  by  the  automobile  laws  are 
committed  at  the  peril  of  those  coming  within  the  statutory 
provisions.  Excessively  speeding,  failure  to  register,  driv- 
ing without  a  license,  lack  of  the  required  equipment, 
operating  a  motor  vehicle  at  night  between  the  designated 
hours  without  the  required  lights,  all,  are  violations  of  the 
mandatory  requirements  which  must  be  obeyed  and  it  will 
be  no  excuse  that  the  defendant  did  not  know  he  exceeded 
the  speed  limit,  or  that  his  rear  lamp  or  number  tag  had 
accidentally  dropped  off,  or  that  he  was  not  complying  with 
the  regulations  in  any  other  particular. 

2 15.  Ignorance  of  the  law. 

"  Every  man  is  presumed  to  knov\^  the  law  "  is  an  ancient 
maxim  of  jurisprudence,  and  under  this  maxim  the  automo- 
bilist  is  arrested,  convicted  and  fined,  no  matter  whether  he 
is  ignorant  of  the  speed  limit  of  a  particular  locality  or  not. 
This  is  right,  for  if  ignorance  could  be  pleaded  as  an  ex- 
cuse for  violating  a  law,  then  almost  every  automobilist  who 


274  THE  LAW  OF  AUTOMOBILES. 

is  brought  into  court  for  overspeeding  would  say  that  he 
did  not  know  the  law,  or  that  he  did  not  know  that  he  was 
exceeding  the  legal  speed.  No  fault  can  be  found  Uy  auto- 
mobile drivers  because  of  punishment  for  ignorance,  but 
when  the  officers  of  the  law  show  an  entire  lack  of  knowl- 
edge of  the  statutory  requirements  the  autoist  has  just  cause 
for  complaint. 

If  policemen  who  are  detailed  to  arrest  motor  vehicle 
drivers  possess  no  other  qualification,  they  should  at  least 
know  the  speed  limits  set  by  law.  How  can  an  officer  law- 
fully make  an  arrest  at  any  time  unless  he  knows  what  the 
rate  of  speed  is  at  the  particular  place?  Of  course,  where 
an  automobile  driver  is  caught  going  at  a  speed  of  from 
40  to  60  miles  an  hour,  the  driver  is  exceeding  all  speed 
laws;  but  where  he  is  traveling  at  a  speed  of  from  10  to  20 
miles  an  hour,  and  is  arrested,  it  is  the  duty  of  the  officer 
to  know  what  he  arrests  the  alleged  offender  for.  If  you 
wish  to  ascertain  his  knowledge  of  the  speed  laws,  ask  an 
officer  how  fast  an  automobile  driver  may  go  at  any  par- 
ticular place,  and  compare  his  answer  with  the  speed  statute, 
and  it  will  be  safe  to  say  that  a  majority  of  officers  will  be 
found  to  be  unable  to  give  a  correct  answer.  When  the 
law  says  that  an  automobilist  may  not  drive  over  10  miles 
an  hour,  this  means  that  he  may  drive  full  10  and  not  99-10 
miles  per  hour.  Officers  of  the  law  do  not  seem  to  under- 
stand this. 

Take  another  example.  An  officer  in  court  was  asked 
what  speed  limit  he  arrested  the  automobile  driver  for 
exceeding,  for  going  faster  than  10  miles  an  hour.  He  was 
then  asked  why  he  did  not  know  tliat  the  speed  limit  at 
the  locality  was  15  miles  an  hour,  and  he  positively  stated 
that  he  knew  that  10  miles  was  the  maximum  rate  at 
which  an  automobilist  is  allowed  to  go.  Of  course,  the 
case  was  dismissed. 


UNLAWFUL  SPEEDING  ON  THE  PUBLIC  HIGHWAYS.    175 

Automobilists  also  should  acquaint  themselves  with  the 
speed  rates  of  the  different  localities  in  States  through  or 
into  which  they  drive,  especially  where  the  State  law  regu- 
lates speed.  Where  there  are  local  speed  limitations  it  is 
more  difficult  to  do  so.  Many  motor  vehicle  drivers  con- 
vict themselves  when  brought  into  court  by  admitting  that 
they  were  exceeding  the  speed  limit.  It  is  quite  a  trick  that 
is  played  in  police  courts  to  induce  the  automobilist  to  admit 
his  guilt.  The  charge  against  him,  we  will  say,  is  for 
operating  a  motor  vehicle  at  a  speed  of  over  15  miles  an 
hour.  This  is  the  express  written  accusation.  The  auto- 
mobilist comes  into  court  and  swears  that  he  was  not  driv- 
ing at  a  rate  of  speed  over  15  miles  an  hour,  and  very 
promptly  the  court  asks  him  at  what  rate  he  was  driving. 
The  accused  answers  from  12  to  14  miles  an  hour.  To  his 
astonishment  he  is  immediately  found  guilty  and  sentenced 
to  pay  a  fine.  He  cannot  understand  why  his  case  was  cut 
so  short  without  giving  him  further  opportunity  to  be  heard. 
The  explanation  is  that  at  the  particular  place  where  he  was 
arrested  the  speed  limit  is  10  miles  an  hour.  The  defen- 
dant did  not  know  this.  The  written  charge  against  him 
accused  him  cf  going  over  15  miles  an  hour,  which  neces- 
sarily includes  going  nt  the  rate  of  10  miles  per  hour,  but 
the  authorities  have  been  crte  enough  to  draw  up  the  charge 
reading  "exceeding  15  miles  an  hour";  consequently  the 
admission  of  the  defendant  that  he  was  going  over  10  miles 
an  hour  convicts  him.^ 


3.  Speed  in  bnilt  up  sections. — Mich.  Pub.  Acts  1905,  p.  290,  fix- 
ing the  rate  of  speed  in  business  and  other  portions  of  the  city,  was 
held  to  require  the  operator  of  an  automobile  to  ascertain  at  his  peril 
when  he  struck  a  business  portion,  although  the  business  portioa  of  a 
city  might  be  in  several  places,  and  when  a  maximum  speed  was 
fixed  by  statute  it  was  a  question  of  fact  whether  the  accused  was 
within  the  limit.     People  v.  Dow,  Mich.  118  N.  W.,  745. 


176  THE  LAW  OF  AUTOMOBILES. 

§16    Graduation  of  punishment. 

Most  of  the  automobile  laws  in  this  country  and  abroad 
expressly  graduate  the  penalties  for  violating  the  law  ac- 
cording to  the  offender's  past  record  and  the  nature  of  the 
offense  committed.  If  the  accused  has  been  convicted  be- 
fore of  violating  the  automobile  law  in  the  particular  State 
the  penalty  which  may  be  imposed  by  the  court  is  more  se- 
vere, and  usually  a  third  ofifense  authorizes  a  heavy  fine  or 
imprisonment,  or  both,  in  the  discretion  of  the  court.  In 
no  State  of  the  United  States  has  the  Legislature  provided 
imprisonment  for  the  first  ofifense.  As  a  general  rule  the 
fines  run  from  $25  to  $100  in  such  cases.  Whether  the 
maximum  fine  shall  be  imposed  is  a  matter  entirely  within 
the  direction  of  the  court,  and  there  are,  or  at  least  should 
be,  many  circumstances  which  have  more  or  less  influence 
in  determining  the  amount  of  the  fine  to  be  imposed  in 
may  be  for  the  first  violation  of  the  law  regulating  speed, 
any  amount  from  a  cent  to  $100,  or  sentence  may  be  sus- 
pended. But  why  is  it  that  one  automobilist  is  fined  $35 
for  exceeding  the  speed  litnit  and  the  next  victim  only 
$15  for  the  same  offense?  Is  there  partiality  in  the 
administration  of  the  law?  As  a  legal  proposition  the 
motorist  who  is  fined  to  the  full  extent  of  the  law  for 
speeding  has  no  legal  complaint  if  another  accused  of  a 
like  offense  is  fined  only  $1.  The  amount  of  the  fine  up  to 
the  prescribed  limit  is  discretionary.  It  may  be  asked,  how- 
ever, what  are  the  facts  or  circumstances  which  should  in- 
fluence the  amount  of  the  fine,  making  it  either  small  or 
large  ?    We  will  consider  them  for  a  moment. 

Criminal  cases  against  automobilists  have  been  dismissed 
because  the  defendant  pleaded  that  the  machine  was  so  out 
of  order  that  he  could  not  keep  it  down,  or  that  he  was 
hurrying  to  get  under  cover  out  of  the  rain;  and  again. 


UNLAWFUL  SPEEDING  ON  THE  PUBLIC  HIGHWAYS.    177 

that  he  was  at  the  time  engaged  in  some  errand  of  extreme 
necessity.^ 

§  17-  What  a  conviction  means. 

Although  many  automobiHsts  look  upon  being  convicted 
of  violating  the  speed  laws  as  more  or  less  a  joke,  neverthe- 
less, if  they  fully  realized  the  real  seriousness  of  a  criminal 
record  against  their  names,  possibly  there  would  be  fewer 
violations  of  the  law  in  this  respect. 

To  be  convicted  of  operating  an  automobile  faster  than 
the  law  allows  means  that  the  person  convicted  possesses 
a  criminal  record.  Of  course,  his  record  of  criminal  con- 
duct does  not,  ordinarily  speaking,  stamp  him  as  a  person 
not  fit  to  associate  with  others;  nevertheless,  circumstances 
may  easily  arise  in  the  future  where  it  would  be  of  value  to 
him  to  be  able  to  say  that  he  had  never  been  convicted  of 
any  crime.  For  example,  if  he  should  ever  be  put  on  the 
witness  stand  to  testify  in  a  civil  suit,  either  as  a  party  or 
a  witness,  he  may  be  asked  if  he  was  ever  convicted  of  any 
crime.  If  he  had  ever  been  convicted  of  overspeeding,  he 
would  be  compelled  to  answer  the  question  under  oath  in 
the  affirmative,  and  his  reply  could  be  used  to  impeach  his 
testimony  as  a  witness.  The  jury  may  discredit  his 
evidence,  and  upon  argument  of  counsel  the  conviction 
against  him  may  be  used.  It  is  the  ambition  of  every  true- 
minded  American  citizen  to  have  a  clean  and  clear  record, 
especially  free  from  criminal  conduct.  To  violate  the  auto- 
mobile law  constitutes  a  misdemeanor,  a  crime,  and  having 
been  convicted  of  violating  the  law  the  offender  has  a 
criminal  record.  Crime  is  also  ground  for  expulsion  from 
office,  or  practice  by  attorneys  and  physicians. 

4.   Speed  contests  on  the  public  highways  are  illegal  indictable 
nuisances  and  all  participants  may  be  prosecuted  together  with  the 
promoters.    Johnson  v.  New  York,  109  N.  Y.  App.  Div.  821,  96  N.  Y. 
Supp.  1130,  judgment  reversed  186  N.  Y.  139. 
12 


CHAPTER  XV. 
DANGEROUS    AUTOMOBILE   DRIVING. 

Sec  1.  Abolishment  of  arbitrary  speed  limits. 

2.  What  is  dangerous  driving. 

3.  Negligent  v.  dangerous  driving. 

4.  Criminal   aspect  of  dangerous  driving. 

5.  Manslaughter. 

6.  Instances  of  criminal  driving. 

7.  Unusual  speed. 

8.  Killing  passenger. 

9.  Accidental  killing. 

10.  Thoughtless  inattention. 

§  1.  Abolishment  of  arbitrary  speed  limita. 

The  tendency  to  abolish  arbitrary  speed  Hmits  controUing 
the  operation  of  automobiles  on  the  public  highways,  as 
evidenced  by  the  automobile  law  of  the  State  of  Connecticut, 
enacted  in  1907.  which  tendency  is  to  make  "dangerous 
driving  "  the  test  of  the  propriety  of  the  automobilist's  con- 
duct naturally  leads  us  to  ask.  What  is,  or  may  constitute 
"  dangerous  driving,"  and  by  what  rules  or  standards  is 
"  dangerous  driving  "  to  be  determined? 

Heretofore  the  authorities  have  relied  on  mathematics  in 
judging  whether  an  automobile  driver  had  violated  the  law. 
Now,  however,  both  the  authorities  and  automobilists  are 
to  throw  away  the  stop  watch,  and  auto  drivers  are  to  be 
held  criminally  liable  only  when  they  conduct  themselves 
so  as  to  create  danger  to  the  person  or  property ;  that  is, 
if  legislation  along  the  lines  mentioned  is  enacted  generally 
throughout  the  United  States.    The  total  abolition  of  arbi- 

[178] 


DANGEROUS  AUTOMOBILE  DRIVING.  179 

trary  speed  limits  will  never  be  and  ought  not  to  be  accom- 
plished. 

^  2.  What  is  dangerous  driving? 

Conduct  may  be  dangerous  or  not,  according  to  the 
persons  considering  it  and  sitting  in  judgment.  A  woman 
may  be  afraid  of  a  mouse,  yet  it  is  not  dangerous.  Walking 
along  an  electric  railroad  near  the  deadly  third  rail  may  not 
be  dangerous  to  the  electrical  engineer  employed  by  the 
road.  So  it  may  be  on  the  public  highways ;  conduct  which 
is  dangerous  to  some  persons  may  not  be  dangerous  to 
others.  That  which  would  be  dangerous  to  an  inex- 
perienced traveler  on  the  public  thoroughfares  may  not  be 
dangerous  to  the  expert  automobile  driver  who  has  been 
accustomed  to  driving  through  traffic  and  congested 
districts. 

Dangerous  automobile  driving  can  only  be  determined  to 
be  such  by  reference  to  the  common  law  as  announced  by 
the  decisions  of  the  courts.  What  the  automobile  driver 
should  or  should  not  do  under  certain  circumstances  can 
only  be  ascertained  from  decisions  of  the  courts  of  America 
and  England  as  to  what  the  driver  of  a  vehicle  should  or 
should  not  have  done  under  similar  circumstances,  or  by 
asking  if  in  the  particular  case  the  driver  acted  as  a  reason- 
able man  would  act  under  like  conditions. 

§  3.  Negligent  v.  dangerous  driving. 

At  the  outset  let  it  be  said  that  dangerous  driving  is 
negligent  driving,  and  vice  versa;  but  dangerous  driving 
may  be  something  more  than  negligence.  Negligence  may 
be  defined  to  be  the  omission  of  something  which  a  reason- 
able man  would  do,  or  the  commission  of  something  which 
a  reasonable  man  would  not  do ;  in  either  case  causing  mis- 
chief or  apprehension  to  a  third  party,  not  intentionally,  for 


IgO  THE  LAW  OF  AUTOMOBILES. 

if  there  is  an  intentional  wrong  then  it  is  not  negligence. 
Intentional  dangerous  automobile  driving  is  something 
more  than  neglect  or  the  failure  to  exercise  due  care,  and 
this  is  of  vast  importance  for  the  automobilist  to  keep  con- 
stantly in  mind. 

It  would  perhaps  seem  at  first  thought  that  an  automobile 
could  only  be  driven  dangerously  in  case  there  are  other 
persons  besides  the  driver  of  the  motor  vehicle  upon  the 
highway,  toward  whom  danger  must  be  directed,  or  that 
there  must  be  somebody's  property  subjected  to  danger.  In 
other  words,  can  there  be  dangerous  driving  unless  there  be 
either  person  or  property  subjected  to  hazard?  Undoubt- 
edly there  may  be.  If,  for  example,  an  automobilist  should 
drive  through  the  streets  of  a  city  in  a  congested  district  at 
midnight,  the  mere  fact  that  there  are  no  people  on  the  high- 
way at  the  time  would  not  make  his  driving  lawful.  The 
liability  of  people  being  there  or  suddenly  appearing  would 
be  sufficient  to  make  the  driving  dangerous,  within  the 
meaning  of  the  law.  Then,  again,  the  question  of  speed 
might  not  have  anything  to  do  with  the  question  whether 
automobile  driving  is  dangerous.  A  person  who  drives  an 
automobile  carelessly,  although  going  at  a  rate  of  speed  of 
three  miles  an  hour,  for  instance,  may  be  guilty  of  danger- 
ous driving;  or,  if  the  driver  is  intoxicated,  the  driving 
might  be  said  to  be  dangerous  per  se.  It  may  be  that  it 
would  constitute  dangerous  driving  for  an  automobile  to 
stand  absolutely  still  on  the  highway  under  circumstances 
which  would  require  its  driver,  as  a  prudent  man,  to  drive 
ahead.  Such  conduct  w^ould  not,  perhaps,  come  technically 
within  the  term  "  driving,"  and  would  be  included  more 
properly  under  the  desigiiation  of  management  of  the  ma- 
chine. However,  it  has  been  held  that  a  person  riding  in  a 
carriage  may  be  said  to  be  "  driving  "  the  vehicle,  within 
the  meaning  of  our  automobile  laws.     (See  State  v.  Good- 


DANGEROUS  AUTOMOBILE  DRIVING.  181 

win,  82  N.  E.  Rep.  459.)  Right  here  it  may  be  suggested 
that  it  would  be  well  if  automobile  legislation  would  use  the 
term  "  management  "  in  connection  with  the  word  "  driv- 
ing," so  that  the  stopping  of  a  machine,  or  leaving  it  on  the 
highway  so  that  meddlers  might  interfere  with  it,  would  be 
included. 

§  4.  Criminal  aspect  of  dangerous  driving. 

Shocking  as  the  statement  may  seem,  it  is,  nevertheless, 
the  old  common  law  that  if  a  man  drives  recklessly  a  power- 
ful vehicle  into  a  crowd  and  kills  a  person,  it  may  consti- 
tute murder,  for  if  the  person  driving  saw  or  had  timely 
notice  of  the  mischief  likely  to  ensue,  and  yet  wilfully  drove 
"on,  his  offense  would  be  something  more  than  mere  man- 
slaughter. In  such  a  case  the  presumption  of  malice  arises 
from  the  doing  of  a  dangerous  act  intentionally,^  and 
"  there  is  the  heart  regardless  of  social  duty."  This  may  be 
said  to  be  the  most  serious  and  atrocious  aspect  of  "  danger- 
ous automobile  driving,"  which  may  exist  under  very 
peculiar  circumstances.  What  comes  nearest  to  it  is  the 
conduct  of  an  automobile  driver  hastening  away  after  killing 
a  victim  without  stopping  to  investigate  the  result  of  his 
act.  Also  engaging  in  racing  on  the  public  highways  which 
results  in  death  has  a  similar  aspect,  since  killing  is  done 
while  in  the  performance  of  an  illegal  act. 

The  frequency  of  automobile  accidents  causing  serious 
injuries  on  the  public  highways  during  the  year  of  1908, 
calls  for  some  action  on  the  part  of  the  State  or  municipali- 
ties, to  make  travel  on  the  public  highways  attendant  with 
less  danger,  especially  concerning  the  automobile.  Most 
of  these  accidents  have  occurred  to  pedestrians,   at  least 


1.  Hale,  476;  Fost,  263;  1  Easts.  Pleas  of  the  Crown,  263;  R.  E.  G. 
V.  Cook;  1  L.  D.  Raym.,  143. 


Ig2  THE  LAW  OF  AUTOMOBILES. 

those  which  have  been  of  the  more  serious  character. 
Nothing  of  good  can  be  done,  however,  without  an  investi- 
gation into  the  causes  of  the  coHisions  and  some  satis- 
factory conclusion  reached  as  to  which  class  of  users  of  the 
highway  is  to  blame. 

The  pedestrian  class  is  the  weakest  of  all  others  which 
use  the  public  streets  and  thoroughfares.  Those  who  travel 
in  vehicles  are  protected  to  a  more  or  less  extent  against 
actual  personal  contact  with  other  objects  on  the  public 
thoroughfares.  Consequently,  there  is  advantage  taken  of 
the  inequality  of  the  situation.  Naturally  a  pedestrian  will 
flee  in  order  to  avoid  injury,  no  matter  whether  he  had  at 
the  time  a  legal  right  to  hold  his  ground.  If  drivers  of 
automobiles  and  other  vehicles  fully  realized  the  serious- 
ness of  their  conduct  when  the  right  of  way  of  the  pedes- 
trian is  not  respected,  and  if  the  common  law  would  be 
enforced,  there  would  be  a  marked  decrease  in  the  accidents 
which  happen  on  the  public  highways. 

A  driver  of  an  automobile  or  other  vehicle  is  criminally 
responsible  for  injuries  caused  by  wilfully  and  recklessly 
driving.  Going  back  to  the  early  common  law  of  England 
and  investigating  the  decisions,  much  valuable  information 
may  be  derived  concerning  what  conduct  constitutes  crim- 
inal driving  on  the  public  thoroughfares.  We  will  consider 
a  number  of  these  English  decisions  for  the  purpose  of 
applying  the  principles  involved  to  the  operation  of 
automobiles. 

There  hardly  can  be  an  instance  of  the  commission  of 
murder  by  the  driving  of  a  vehicle  on  the  public  streets 
unless  there  are  very  extraordinary  circumstances  connected 
with  it. 

It  is,  however,  laid  down  in  Vol.  I  of  East's  Pleas  of  the 
Crime,  at  page  263,  as  follows: 


DANGEROUS  AUTOMOBILE  DRIVING.  183 

"  A  person  driving  a  carriage  happens  to  kill  an- 
other: If  he  saw  or  had  timely  notice  of  the  mischief 
likely  to  ensue,  and  yet  wilfully  drove  on,  it  will  be 
murder;  for  the  presumption  of  malice  arises  from  the 
doing  of  a  dangerous  act  intentionally.  There  is  the 
heart  regardless  of  social  duty.  If  he  might  have  seen 
the  danger,  but  did  not  look  before  him,  it  will  be 
manslaughter,  for  want  of  due  circumspection.  But 
if  the  accident  happened  in  such  a  manner  that  no 
want  of  due  care  could  be  imputed  to  the  driver,  it 
will  be  accidental  death,  and  he  will  be  excused." 
In  the  same  report  mentioned  above  the  following  case  is 
to  be  found  and  comment  thereon : 

"A  was  driving  a  cart  with  four  horses  in  the  high- 
way at  Whitechapel ;  and  he  being  in  the  cart  and  the 
horses  upon  a  trot,  they  threw  down  a  woman  who 
was  going  the  same  way  with  a  burthen  upon  her  head, 
and  killed  her.  Holt,  C.  J.,  Tracy,  J.,  Baron  Burg, 
and  the  Recorder  Level  held  this  to  be  only  misad- 
venture. But,  by  Lord  Holt,  if  it  had  been  in  a  street 
where  people  usually  pass,  this  had  been  manslaughter; 
but  it  was  clearly  agreed  that  it  could  not  be  murder. 
"  It  must  be  taken  for  granted  from  this  note  of  the 
case,  that  the  accident  happened  in  an  highway  where 
people  did  not  usually  pass;  for,  otherwise,  the  cir- 
cumstance of  the  driver  being  in  his  cart,  and  going  so 
much  faster  than  is  usual  for  carriages  of  that  con- 
struction, savoured  much  of  negligence  and  impropri- 
ety; for  it  was  extremely  difficult,  if  not  impossible, 
to  stop  the  course  of  the  horses  suddenly  in  order  to 
avoid  any  person  who  could  not  get  out  of  the  way  in 
time.  And,  indeed,  such  conduct  in  a  driver  of  such 
heavy  carriages  might  under  most  circumstances  be 
thought  to  betoken  a  want  of  due  care,  if  any  though 


184  THE  LAW  OF  AUTOMOBILES. 

but    few   persons   might   probably   pass   by   the    same 
road.    The  greatest  possible  care  is  not  to  be  expected, 
nor  is  it  required;  but  whoever  seeks  to  excuse  him- 
self for  having  unfortunately  occasioned  by  any  act  of 
his  own  the  death  of  another,  ought  at  least  to  show 
that  he  took  that  care  to  avoid  which  persons  in  similar 
situations  are  most  accustomed  to  do.     Upon  this  sup- 
position the  death  is  to  be  referred  to  misadventure, 
which  was  occasioned  by  the  head  of  a  workman's  axe 
flying  off  and  killing  a  bystander." 
The  driver  of  a  vehicle,  whether  it  is  an  automobile  or 
horse-drawn  carriage,  if  he  is  guilty  of  inattention  to  his 
duty,  may  be  criminally  responsible  for  any  death  which  his 
vehicle  may  cause   at   the   time.      For   example,   if   he    is 
driving  an  automobile  while  holding  conversation  with  a 
companion  and  not  looking  ahead  to  see  who  might  be  in 
the  highway.     Under  such  circumstances,  if  he  should  kill 
a  child,  he  would  be  guilty  of  manslaughter.      (Knight's 
Case.  Lewin's  Crown  Cases,  Vol.  I,  page  i68.) 

Contributory  negligence  as  a  defense. — If  a  man  under- 
takes to  drive  another  in  a  vehicle,  he  is  bound  to  exer- 
cise proper  care  in  regard  to  the  safety  of  the  man  under 
his  charge;  and  if  by  culpably  negligent  driving  he  causes 
the  death  of  the  other,  he  will  be  guilty  of  manslaughter. 
But  he  cannot  be  found  guilty  of  manslaughter  if  the 
deceased  himself  interfered  in  the  management  of  the 
vehicle  and  thereby  assisted  in  bringing  about  the  acci- 
dent. Even  if  the  doctrine  of  contributory  negligence 
applies  to  criminal  cases,  which  is  very  much  doubted, 
yet  there  is  no  contributory  negligence  on  the  part  of  any 
one  in  merely  getting  into  a  vehicle  and  allowing  himself  to 
be  driven,  although  the  driver  is  perceptibly  drunk.  (Reg. 
V.  Jones,  Vol.  II,  Cox's  Criminal  Cases,  page  544.)  This 
case  enunciates  the  principle  covering  the  criminal  liability 


DANGEROUS  AUTOMOBILE  DRIVING.  185 

of  the  chauffeur  for  causing  the  death  of  his  employer,  or 
any  member  of  his  family  while  riding. 

Racing  upon  the  public  highways.— In  Regina  v.  Swin- 
dall,  Vol.  II,  Carrington  &  Kirwan's  Reports,  page  229, 
it  was  held  as  follows : 

"If  each  of  two  persons  be  driving  a  cart  at  a 
dangerous  and  furious  speed,  and  they  be  inciting  each 
other  to  drive  at  a  dangerous  and  furious  rate  along  a 
turnpike  road,  and  one  of  the  carts  run  over  a  man 
and  killed  him,  each  of  the  two  persons  is  guilty  of 
manslaughter,  and  it  is  no  ground  of  defence,  that  the 
death  was  partly  caused  by  the  negligence  of  the  de- 
ceased himself,  or  that  he  w^as  either  deaf  or  drunk  at 
the  time. 

"  Generally  it  may  be  laid  down  that,  where  one  by 
his  negligence,  has  contributed  to  the  death  of  another, 
he  is  guilty  of  manslaughter." 
In  the  case  of  Rex  v.  Timmins,  Vol.  VII.,  Carrington  & 
Payne's  Reports,  page  499,  the  following  was  held  : 

"If  the  driver  of  a  carriage  be  racing  with  another 
carriage,  and  from  being  unable  to  pull  up  his  horses 
in  time  the  first  mentioned  carriage  is  upset,  and  the 
person  thrown  off  it  and  killed,  this  is  manslaughter 
in  the  driver  of  that  carriage." 
Criminal  responsibility  for  acts  of  chauffeur.— Where  a 
collision  occurs  on  the  highway  and  death  is  caused  the 
person  criminally  responsible  is  the  man  actually  in  charge 
of  the  vehicle  and  whose  negligence  caused  the  accident  at 
the  time  the  collision  took  place.     The  man  is  not  crimi- 
nally responsible  for  the  death  of  another  partly  caused  by 
his  negligence,  where  he  would  not  have  been  civilly  liable 
in  an  action  by  the  suit  of  the  party  injured  if  the  injury 
sustained  had  fallen  short  of  causing  his  death.     (Regina 
V.  Birchall,  Vol.   IV,  Foster  &  Finlason's   Reports,  page 


186  THE  LAW  OF  AUTOMOBILES. 

1087.)     In  the  case  of  Reg.  v.  Murray,  V.  Cox's  Criminal 

Cases,  page  509,  it  is  held  as  follows : 

"If  the  driver  of  a  conveyance  uses  all  reasonable 
care  and  diligence,  and  an  accident  happens  through 
some  chance  which  he  could  not  foresee  or  avoid,  he  is 
not  to  be  held  liable  for  the  results  of  such  accident. 

"  The  fact  that  the  streets  are  unusually  crowded 
from  any  public  procession,  or  other  cause,  instead  of 
excusing  a  driver  when  proceeding  at  his  ordinary 
pace  and  with  ordinary  care,  requires  him  to  be  par- 
ticularly cautious,  and  may  tend  to  render  him  crimi- 
nally answerable  for  any  accidents  ensuing  from  driv- 
ing at  a  rate,  and  with  those  precautions,  which  he 
might  have  ordinarily  observed." 

§  5.  Manslaughter. 

The  safe  automobile  driver  must  ever  keep  par-amount 
in  his  mind  his  duty  in  regard  to  human  safety  in  order  to 
avoid  being  compelled  to  face  an  accusation  on  one  of  the 
most  serious  offenses  in  which  he  may  become  involved. 
It  has  been  stated  again  and  again  by  prominent  automo- 
bilists  that  if  they  stand  for  anything  it  is  safety.  It  was 
only  a  short  time  ago  that  the  president  of  the  representative 
automobile  club  of  the  United  States,  the  Automobile  Club 
of  America,  stated  that  the  one  great  thing  which  that  or- 
ganization stood  for  above  all  others,  was  safety,  and  this 
should  be  the  predominating  idea  in  the  minds  of  all  motor- 
ists while  driving  on  the  public  highways. 

§  6.  Instances  of  criminal  driying. 

If  the  driver  of  a  vehicle  might  have  seen  the  danger, 
but  did  not  look  before  him,  he  may  be  guilty  of  man- 


DANGEROUS  AUTOMOBILE  DRIVING.  187 

slaughter  if  he  kills  a  person,  because  he  failed  to  exercise 
circumspection.  Where  a  driver  of  a  cab  was  indicted  for 
manslaughter,  for  killing  a  woman,  and  his  defense  was  that 
he  used  due  and  proper  care  in  driving  the  cab  upon  the 
occasion  in  question,  it  was  held  that  the  burden  of  proving 
negligence  did  not  lie  on  the  government,  but  that,  upon  the 
fact  of  the  killing  being  proven,  it  was  cast  upon  the  pris- 
oner to  show  that  he  used  due  care.^  This  is  a  very  old 
English  decision  and  it  is  doubtful  if  it  is  the  law  to-day  in 
any  of  the  States  of  this  country.  Owing  to  the  fact  that 
we  have  comparatively  few  decisions  in  the  United  States 
on  the  subject  of  dangerous  driving  on  the  public  highways, 
we  are  compelled  to  turn  to  the  English  decisions  which,  if 
not  always  controlling,  are  at  least  instructive.  Much  of  the 
law,  however,  as  announced  by  the  English  courts,  will 
be  followed  here  to-day  if  occasion  arises  for  its  applica- 
tion. 

§  7-  Unusual  speed. 

If  the  driver  of  a  carriage  drives  it  at  an  unusually  rapid 
pace,  and  a  person  is  killed,  though  the  driver  gives  warn- 
ing repeatedly  to  such  person  to  get  out  of  danger;  if  owing 
to  the  rapidity  of  the  driving  the  person  cannot  get  out  of 
the  way  in  time,  but  is  killed,  the  driver  is  in  law  guilty  of 
manslaughter.  So,  also,  if  two  drivers  of  a  vehicle  drive 
on  the  highway  at  a  furious  rate  of  speed  in  a  race,  and 
one  of  them  runs  over  a  man  and  kills  him,  both  are  guilty 
of  manslaughter,  where  both  were  urging  and  inciting  the 
race,  and  it  is  no  defense  that  the  death  was  caused  by  the 
negligence  of  the  deceased  himself,  or  that  he  was  either 

2.  Reg.  V.  Cavendish,  2  C.  &  K.,  230. 


,*3r 


188  THE  LAW  OF  AUTOMOBILES. 

deaf  or  drunk  at  the  time."^    What  bearing  has  this  on  auto- 
mobile racing  on  the  public  highway,  readily  can  be  seen. 

§  8.  Killing  passenger. 

Where  one  undertakes  to  drive  another  in  a  vehicle,  he  is 
compelled  by  law  to  exercise  proper  care  for  the  passenger's 
safety.  If  the  passenger  is  killed  by  the  culpable  negligence 
of  the  driver,  the  crime  of  manslaughter  is  committed.^  It 
should  be  remembered  that  contributory  negligence  is  no 
excuse  to  a  criminal  charge  of  driving  dangerously. 

§  9.  Accidental  killing. 

For  a  mere  accident  there  is  no  civil  or  criminal  responsi- 
bility. Every  injury  or  death  caused  by  the  operation  of 
vehicles  on  the  public  ways  does  not  result  in  legal  responsi- 
bility. There  must  be  negligence  or  carelessness  in  the 
driving  in  order  to  render  it  wrongful.'^ 

§  10.  Thoughtless  inattention. 

"  Thoughtless  inattention  is  the  essence  of  negligence," 
says  the  Supreme  Judicial  Court  of  Maine,  in  passing  upon 
the  conduct  of  an  automobilist  who  neglected  to  prevent 
frightening  a  horse  with  his  machine.  It  is  not  so  much, 
perhaps,  what  the  careless  driver  does,  as  it  is  what  he  does 
not  do,  which  causes  injury  either  to  himself  or  to  another. 
Let  us  ask  a  few  questions  as  to  non-feasance  as  distin- 
guished from  misfeasance.  The  term  "  thoughtless  inatten- 
tion "  will  hereafter  be  a  well-known  one  in  automobile 


3.  Reg.  Swindall,   2  C.   &  K..   230;    Reg.   v.   Timmins,   7  C.  &  P., 
500. 

4.  Reg.  V.  Jones.  22  L.  T..  U.  S..  217;   11  Cox.,  C.  C,  544. 

5.  Reg.  V.  Murray,  5  Cox..  C.  C,  509. 


DANGEROUS  AUTOMOBILE  DRIVING.  189 

driving  and  the  use  of  the  term  by  the  Supreme  Court  of 
Maine  was  a  happy  thought. 

Let  us  ask  if  automobile  drivers — 

1.  Exercise  reasonable  care  for  the  safety  of  others? 

2.  Assume  that  others  will  exercise  reasonable  care  for 
their  own  safety? 

3.  Keep  to  the  right  of  the  center  of  the  road  when  meet- 
ing vehicles  ? 

4.  Not  overtake  and  pass  a  vehicle  when  it  cannot  safely 
be  done? 

5.  Pass  to  the  left  of  the  preceding  vehicle? 

6.  Turn  to  the  right  to  allow  others  to  pass  ?. 

7.  Recognize  the  pedestrian's  right  to  use  the  highway? 

8.  Use  reasonable  care  to  avoid  injuring  pedestrians? 

9.  Watch  the  road  for  pedestrians  and  vehicles  ? 

10.  Take  proper  steps  to  avert   danger  at   its  earliest 
appearance  ? 

11.  Look  out  for  overtaking  vehicles  when  stopping  or 
slowing  up. 

12.  Refraining  from  such  speed  as  to  lose  control  of  the 
machine. 

13.  Drive  at  a  safe  speed  with  a  view  to  the  safety  of 
others. 

14.  Maintain  a  safe  speed  at  corners,  so  as  to  be  able  to 
stop  the  machine  immediately  ? 

15.  Maintain  a  slower  rate  of  speed  in  cities  and  closely 
built-up  sections. 

16.  Avoid   racing,   unless  upon   a  proper  and   suitable 
course  under  circumstances  making  it  lawful  to  race. 

17.  Carry  lights  when  reasonably  necessary  and  required 
by  law  ? 

18.  Give    warning    of    approach    under    circumstances 
demanding  it  ? 

19.  Use  care  in  leaving  the  automobile  in  the  highway? 


190  THE  LAW  OF  AUTOMOBILES. 

20.  Refrain,  so  far  as  possible,  from  frightening  animals? 

21.  Stop  the  car  and  engine  when  necessary? 

22.  Prevent  noise  in  the  presence  of  a  frightened  ani- 
mal? 

The  above  are  only  a  few  test  questions  in  regard  to  legal 
driving,  but  they  are  suggestive  at  least  of  what  the  drivers' 
duties  consist  of. 


CHAPTER  XVI. 

DEFENDING  SPEED  CAS^. 

Sec.  1.  In  general. 

2.  Arrests. 

3.  Extenuating  facts  in  defense. 

4.  Preparing  the  defense. 

5.  Making  tests. 

6.  Identity  of  defendant. 

7.  Arrests  at  night. 

8.  Bicycle  policemen. 

9.  Points  in  defending  speed  cases. 

10.  Illegal  police  methods. 

11.  On  stop  watch  testimony. 

§  1.  In  generaL 

When  an  automobile  driver  is  arrested  for  violating  the 
speed  law,  the  first  question  which  comes  to  his  mind  is, 
"  How  fast  was  I  going?"  He  generally  knows  whether 
his  car  traveled  faster  than  the  legal  limit,  but  there  are 
some  cases  where  it  is  a  close  question.  In  such  cases  a 
fair  question  may  arise  in  regard  to  the  guilt  or  innocence 
of  the  defendant,  and  there  are  many  elements  which  are 
influential  in  a  correct  estimation  of  the  time  by  the  officer 
using  a  stop-watch.  To  defend  cases  of  this  character 
where  there  is  a  fair  question  in  regard  to  whether  the  law 
has  been  violated  is  not  an  altogether  hopeless  task,  al- 
though it  must  be  admitted  that  the  odds  are  considerably 
against  the  automobilist.  There  are  cases  of  arrest  where 
the  speed  laws  are  not  violated,  and  such  cases  should  on 
principle  be  vigorously  defended.     Many  cases  also  come 

[191] 


192  THE  LAW  OF  AUTOMOBILES. 

up  where  the  speed  laws  are  undoubtedly  violated,  and  to 
defend  such  is  a  waste  of  time  and  labor  unless  a  very  clear 
defense  can  be  made  or  the  circumstances  are  extremely 
mitigating.  It  is  far  better  in  these  instances  to  plead  guilty 
and  escape  with  as  low  a  fine  as  possible. 

§  2.  Arrests. 

The  automobilist  arrested  for  violating  the  law  is  taken 
before  a  magistrate  or  police  officer,  and  ordinarily  admit- 
ted to  bail.  In  some  sections  he  may  have  an  immediate 
hearing,  but  it  is  advisable  where  a  defense  is  to  be  inter- 
posed to  request  an  adjournment  and  ask  for  a  hearing  at 
a  future  day,  so  that  time  may  be  had  to  communicate  with 
counsel  and  prepare  the  defense.  It  is  the  duty  of  com- 
mitting magistrates  and  officers  who  admit  to  bail,  also 
constables  and  police  officers  w^ho  make  arrests,  to  accord 
courteous  treatment  to  those  charged  with  violating  the 
law.  Arresting  automobilists  by  extraordinary  measures, 
such,  for  example,  as  stretching  ropes  across  the  road, 
placing  obstacles  on  the  highway,  and  the  like  is  clearly 
illegal  and  subject  to  the  criminal  law.  No  police  officer  or 
constable  has  the  right  to  do  more  than  arrest  the  automo- 
bilist in  the  ordinary  method  of  making  arrests,  which  does 
not  necessitate  a  physical  restraint  or  touching  of  the 
accused,  since  a  mere  statement  by  the  officer  that  the  party 
is  under  arrest,  and  a  submission  to  the  arrest,  constitute 
in  law  all  that  is  necessary  for  the  officer  in  the  fulfillment 
of  his  duty.  It  must  be  borne  in  mind  that  violations  of  the 
automobile  laws  are  not  felonies  but  merely  misdemeanors. 
The  method  of  arresting  an  automobilist  is  of  importance 
in  defending  the  prosecution.  If  an  arrest  is  made  illegally, 
either  because  there  was  not  an  infraction  of  the  law  or 
because  of  the  method  of  making  the  arrest,  then  either  is 
at  least  an  extenuating  circumstance,  which  should  be  influ- 


DEFENDING  SPEED  CASES.  I93 

ential  in  determining  the  case  in  favor  of  the  automobilist, 
especially  if  he  is  charged  with  merely  a  technical  violation 
of  the  law. 

§  3-  Extenuating  facts  in  defense- 

In  the  trial  of  automobile  speed  cases,  especially  in  pre- 
liminary hearings,  before  committing  magistrates,  it  will  be 
found  that  if  there  is  any  evidence  at  all  of  a  violation  of 
law  the  magistrate  will  hold  the  defendant  for  trial,  leaving 
the  question  of  guilt  or  innocence  of  the  accused  to  be  deter- 
mined by  the  court  or  jury  which  examines  into  the  merits 
of  the  case.  In  fact,  it  is  the  imperative  duty  of  binding 
over  magistrates  to  hold  a  defendant  for  trial  if  there  is 
any  evidence  of  a  trustworthy  nature  which  shows  that  he 
violated  the  law,  no  matter  how  much  contradictory  evi- 
dence may  be  produced  by  the  automobilist,  if  it  does  not 
cast  substantial  discredit  upon  the  testimony  of  the  officer. 
All  that  magistrates  at  preliminary  hearings  need  to  find  is 
probable  cause  that  the  law  was  violated.  Notwithstanding 
the  duties  of  magistrates,  imposed  by  the  law  upon  them, 
there  is  more  or  less  discretion,  which  every  judge  is  bound 
to  exercise  in  determining  cases  which  come  up  before  him. 
In  the  exercise  of  this  discretion  magistrates  frequently  dis- 
miss charges  of  violating  the  speed  laws,  because,  for  exam- 
ple, a  physician  was  hurrying  to  the  bedside  of  a  patient ;  a 
sick  man  was  in  the  automobile,  being  carried  to  a  hospital. 
An  interesting  case  came  before  a  magistrate  in  the  City 
of  New  York,  where  an  automobilist  was  arrested  for  vio- 
lating the  speed  law.  While  under  arrest  and  being  con- 
ducted to  the  police  station  in  the  custody  of  the  officer  he 
operated  the  car  at  a  slightly  excessive  speed.  Another 
complaint  was  entered  against  him  for  violating  the  speed 
law  while  on  his  way  to  the  station.  Obviously,  a  case  of 
this  kind  should  be  dismissed,  since  the  illegal  act  was  per- 

18 


;^94:  THE  LAW  OF  AUTOMOBILES. 

formed  while  in  the  custody  of  the  officer  and  with  his 
imphed  consent,  as  it  is  not  only  the  duty  of  an  officer  to 
make  an  arrest  after  the  commission  of  a  misdemeanor,  but 
it  is  his  duty  to  arrest  an  offender  at  the  time  of  committing 
an  illegal  act,  thereby  preventing  its  consummation.  The 
magistrate  dismissed  the  second  charge  against  the 
automobilist. 

§  4.  Preparing  the  defense. 

It  is  useless  to  go  into  court  to  defend  an  automobilist  for 
violating  the  law  without  making  a  thorough  preparation. 
Too  many  lawyers  leave  a  case  until  the  very  last  minute, 
and  then  go  before  the  court  to  defend  the  accused,  trust- 
ing to  their  spontaneous  ability,  so  to  speak,  to  trip  up  the 
police  officer  in  his  evidence  and  thereby  gain  the  ac(iuitlal 
of  the  automobilist.     No  greater  mistake  could  be  made  by 
any  practicing  attorney,   for  ordinarily  the  policeman  has 
prepared  his  case  in  a  careful  manner  and  has  anticipated 
possible  attacks  that  might  be  made  against  him  by  the 
defense.    The  first  thing  that  an  arrested  automobilist  ought 
to  do  is  to  ascertain  the  precise  course  over  which  he  was 
timed.    The  points  or  marks  of  this  course  should  be  deter- 
mined, so  that  before  the  hearing  the  course  can  be  meas- 
ured by  the  automobilist  in  company  with  others,  who  can 
act  as  witnesses.    An  officer's  word  that  the  distance  of  the 
course  is   264  feet,   for  example,   should  not  be  accepted 
without  verification.     Tlie  officer  may  or  may   not   have 
measured   it.     Very  often  the   policeman  makes  a  rough 
guess  as  to  the  distance,  especially  when  the  automobilist  is 
timed  for  the  length  of  a  block.     The  reasoning  process  of 
the  officer  is  that  a  block,  being  about  one-twentieth  of  a 
mile,  is  consequently  264  feet.     It  will  not  do  to  guess  at 
the  distance  when  an  automobilist  is  timed  over  a  short 
course,  for  a  mistake  of  a  few  seconds,  or  even  a  fraction  of 


DEFENDING  SPEED  CASES.  195 

a  second,  may  make  legal  the  speed  which  appeared  illegal. 
Always  measure  the  course  over  which  you  were  timed  is 
the  advice  given  to  automobilists  who  wish  to  defend  their 
cases. 

§  5-  making  tests. 

If  an  automobilist  is  arrested  for  over-speeding  while 
traveling  up  grade,  which  oftentimes  happens,  a  good  thing 
to  do  is  to  test  the  car  up  the  grade  with  a  speedometer  and 
ascertain  whether  it  can  travel  at  the  speed  charged.  A 
test  of  this  kind  was  made  not  long  ago  in  a  case  where  an 
automobilist  was  arrested  for  speeding  up  a  hill,  and  it  was 
found  that  the  machine  could  not  possibly  travel  over  the 
speed  limit,  which  was  1 5  miles  an  hour.  This  conclusively 
proved  that  the  officer's  statement  that  the  machine  traveled 
at  the  rate  of  23  miles  an  hour  was  inaccurate,  and  the 
magistrate  dismissed  the  case. 

There  are  many  other  tests  which  should  be  made,  such, 
for  example,  as  demanding  that  the  officer  produce  his 
stop-watch  so  that  it  can  be  compared  with  other  stop- 
watches in  order  to  see  if  it  gains.  In  a  case  which  the 
writer  defended  some  time  ago  it  was  found  that  a  police 
officer's  stop-watch  gained  one  second  in  every  sixty. 
Then,  again,  the  ability  of  the  officer  to  use  a  stop-watch 
accurately  should  also  be  tested.  The  condition  of  the 
officer's  eyesight  may  be  very  material,  and  he  should  be 
cross-examined  in  regard  to  his  ability  to  see,  especially 
when  the  automobile  was  timed  from  a  point  several  hun- 
dred feet  distant  from  where  he  stood. 

The  ordinary  testimony  which  is  given  by  a  police  officer 
is  that  he  saw  the  automobile  pass  a  certain  mark  so  many 
feet  away  from  him,  pressed  his  stop-watch  at  that  time, 
and  when  he  saw  the  machine  pass  the  second  mark  he 


196  THE  LAW  OF  AUTOMOBILES. 

pressed  his  stop-watch  again,  whereupon  lie  figured  up  the 
speed  rate  from  the  number  of  seconds  indicated  by  his  time- 
piece, which  showed  a  speed  of  25  miles  an  hour.  Did  the 
ofHcer  see  the  automobile  pass  the  first  mark  of  its  course? 
If  he  did  see  it.  what  portion  of  the  machine  passed  the 
mark  when  he  first  pressed  the  stop-watch?  The  front, 
middle  or  back  ?  In  nine  cases  out  of  ten  the  officer  will 
swear  it  was  either  the  front,  middle  or  back  of  the  machine 
which  passed  the  mark  when  he  pressed  his  watch,  and  that 
it  was  exactly  the  front,  middle  or  back  of  the  machine, 
not  even  a  foot  out  of  the  way  either  one  side  or  the  other. 
Such  testimony  seems  to  be  altogether  too  accurate  for 
reliability  and  should  be  discredited.  But  it  may  be  stated 
that  in  a  large  majority  of  the  cases  the  police  ofiicer  does 
not  actually  see  the  automobile  pass  or  leave  the  first  mark 
of  his  course. 

§  6.  Identity  of  defendant. 

It  does  not  do  to  be  too  technical  in  prosecuting  or 
defending  an  automobilist,  nor  is  it  well  to  be  technically 
absurd  in  defending  him;  but  there  are  certain  rights  which 
every  defendant  may  insist  upon  being  accorded  him,  such, 
for  example,  as  the  presumption  of  innocence  and  his  right 
to  demand  that  the  prosecution  prove  its  case  against  him 
beyond  reasonable  doubt.  An  accused  person  is  not  obliged 
to  prove  anything  in  automobile  speed  cases.  The  onus  is 
upon  the  prosecution  to  prove  beyond  reasonable  doubt  two 
things: 

First,  that  the  automobile  was  driven  at  a  rate  of  speed 
over  the  legal  limit. 

Second,  that  the  person  arrested  is  the  person  who  com- 
mitted the  illegal  driving. 

As  a  general  rule  all  that  the  officer  saw  was  the  machine, 


DEFENDING  SPEED  CASES.  197 

the  automobile  itself.  His  eyes  were  glued  upon  the  motor 
vehicle,  and  only  that,  as  it  traveled  from  the  first  point  of 
his  timing  course  to  the  second  point.  Especially  is  this  the 
case  where  the  automobile  is  timed  after  it  passes  the  offi- 
cer to  a  point  beyond,  in  which  case  only  the  back  or  side 
of  the  machine  is  visible.  In  every  case  where  an  arrest  is 
made  the  officer  approaches  the  automobile  and  invariably 
arrests  the  man  whom  he  finds  at  the  wheel.  The  officer 
did  not  see  this  man  violate  the  law,  unless  he  had  his 
eyes  on  him  all  the  way  over  the  timing  course.  The  mere 
fact  that  he  found  a  particular  person  at  the  wheel  of  the 
machine  after  the  automobile  is  stopped  is  no  presumption 
that  the  individual  in  question  was  the  person  who  drove 
the  machine  illegally.  As  stated  before,  it  must  be  proved 
not  only  that  the  automobile  was  driven  at  an  illegal  rate 
of  speed,  but  that  the  person  arrested  did  the  driving.  In 
ninety-nine  cases  out  of  one  hundred  the  police  officer  can- 
not honestly  swear  that  the  man  he  arrested  violated  the 
law.  He  may  be  morally  certain  that  he  arrested  the  right 
party,  but  legal  evidence  demands  correct  proof  of  identity, 
especially  if  there  are  two  persons  seated  in  the  front  seat, 
which  would  make  it  almost  absolutely  impossible  for  hon- 
est testimony  to  be  given  by  a  police  officer  that  he  recog- 
nized, identified  and  singled  out  one  of  those  persons  as  the 
driver  who  committed  the  illegal  act.  Ordinarily  the  police- 
man sees  nothing  but  the  machine  itself,  and  from  this 
observation  he  has  no  right  to  go  into  court  and  swear  that 
he  saw  the  defendant  drive  the  machine. 

§  7.  Arrests  at  night. 

The  accuracy  of  timing  automobiles  is  reduced  at  night 
time,  especially  if  it  is  very  dark  along  the  highway.  It  is 
a  very  difficult  task  to  see  when  an  automobile  passes  a  cer- 


198  THE  LAW  OF  AUTOMOBILES. 

tain  mark  a  considerable  distance  away,  and  the  chances  of 
mistake  are  so  great  that  the  court  should  look  with  caution 
upon  stop-watch  evidence  of  this  character.  Then,  again, 
the  lights  which  the  machine  ordinarily  carries  are  apt  to 
confuse  the  timer,  since  it  is  impossible  to  see  anything 
except  them. 

§  8.  Bicycle  policemen. 

For  a  police  officer  to  arrest  an  automobilist  and  go  be- 
fore a  magistrate  testifying  that  he  caught  and  arrested 
the  defendant  while  the  latter  was  traveling  at  the  rate  of 
25  to  30  miles  an  hour  on  an  up  grade  is  in  itself  suspicious. 
There  are  many  cases  of  this  kind,  however,  and  oftentimes 
it  is  very  easy  to  lead  a  police  officer  into  inconsistent  state- 
ments in  regard  to  the  speed  of  the  automobile  and  his 
bicycle.  What  was  the  gear  of  the  bicycle  ?  What  was  the 
grade  of  the  highway?  What  has  been  the  officer's  expe- 
rience in  bicycle  riding?  These  are  all  questions  of  import- 
ance in  testing  the  accuracy  of  the  statements  of  the  bicycle 
policemen.  There  have  been  tests  made  to  determine  how' 
fast  the  police  officer  could  ride  bicycles,  and  it  was  found 
that  a  few  could  with  considerable  effort  propel  their  wheels 
on  a  level  grade  at  a  rate  of  25  miles  an  hour  for  a  short 
distance.  It  takes,  however,  a  pretty  good  man  to  do  this, 
and  when  a  policeman  testifies  that  he  caught  an  automo- 
bilist traveling  at  that  rate  of  speed  he  is  treading  upon 
very  delicate  ground. 

§  9.  Points  in  defending  speed  cases. 

Probably  no  case  presents  a  more  difficult  task  to  the 
lawyer  than  the  prosecution  of  an  automobile  driver  for 
violating  a  speed  law.     Ordinarily,  the  advice  given  to  a 


DEFENDING  SPEED  CASES.  199 

defendant  accused  of  speeding  is  to  plead  guilty  and  accept 
the  punishment  of  the  court,  whatever  it  may  be.  Where 
there  is  a  probability  of  the  infliction  of  merely  a  fine,  then 
the  consequences  are  not  very  serious,  but  where  the  offense 
is  a  second  or  a  third,  and  imprisonment  may  be  the  pun- 
ishment therefor,  then  the  automobile  driver  has  a  serious 
proposition  staring  him  in  the  face,  which  is  usually  a  pos- 
sibility at  least  of  going  to  jail  for  a  few  days,  or  weeks. 
Imprisonment  has  rarely  been  resorted  to,  however,  in  the 
United  States  for  punishing  automobile  drivers,  and  the 
instances  of  physical  incarceration  for  speeding  are  few  and 
far  between.  Notwithstanding  the  accepted  punishment,  it 
is  a  thing  not  to  be  relished,  to  have  a  criminal  conviction 
placed  against  the  citizen's  name.  Therefore  it  is  that  many 
automobilists,  who  believe  that  they  have  acted  legally, 
desire  to  prevent  a  conviction  against  them  wherever  it  is 
possible  under  the  circumstances. 

There  are  to-day  three  methods  of  timing  automobiles, 
namely,  by  the  use  of  a  stop-watch,  the  speedometer,  and 
opinion  evidence  as  to  speed,  given  by  eye-witnesses  who 
may  be  either  trained  or  untrained  in  the  calculation  of  the 
velocity  of  moving  objects.  Speed  alone  is  an  intangible 
thing,  the  estimation  of  which  results  in  a  methematical 
calculation.  It  is  necessarily  composed  of  time  and  dis- 
tance, and  is  relative  to  either  a  stationary  object  or  point, 
or  an  object  or  point  which  is  moving.  The  latter  case 
occurs  when  an  automobile  is  being  timed  by  a  person  who 
is  also  moving  along  the  highway,  such,  for  example,  as  an 
officer  on  a  bicycle,  or  motor  cycle,  or  in  an  automobile. 
At  the  outset  it  should  be  understood  that  no  person  can  be 
convicted  of  a  criminal  offense,  unless  it  is  upon  the  sworn 
testimony  of  a  witness  who  saw  the  act  committed.  In  the 
case  of  an  automobile  violating  the  speed  law,  the  witness, 
if  we  are  to  follow  the  requirements  of  law,  must  be  able 


200  THE  LAW  OF  AUTOMOBILES. 

to  testify  under  oath  that  he  saw  the  automobile  travel, 
that  he  saw  the  defendant  cause  the  automobile  to  travel, 
both  of  which  over  a  certain  designated  and  measured  space 
within  a  certain  measured  lapse  of  time.  As  suggested, 
there  are  quite  a  number  of  elements  in  the  offense  of  speed- 
ing an  automobile  which  are  to  be  established  in  order  to 
convict  a  driver. 

First  and  foremost,  where  a  stop-watch  is  used  to  time  an 
automobile,  a  measured  distance  along  the  highway  must 
have  been  measured  accurately.  This  distance  must  have 
been  measured  by  the  person  testifying  in  the  witness  chair 
and  who  swears  as  to  the  speed.  It  will  not  do  for  an- 
other person  to  have  measured  the  course  and  who  told  the 
officer  that  it  was  a  certain  number  of  feet  or  yards.  If 
the  officer  testifies  that  the  speed  of  an  automobile  exceeded 
a  certain  rate  according  to  his  stop-watch,  and  he  bases  his 
estimation  on  the  distance  which  the  automobile  traveled 
within  the  time,  but  he  merely  knew  the  distance  from  the 
say-so  of  some  other  person  who  measured  it,  this  testi- 
mony is  incompetent.  It  constitutes  hearsay,  which  is  never 
permitted  in  courts  of  law.  So,  one  of  the  first  things  for 
an  automobilist  to  do  is  to  see  that  no  hearsay  evidence  is 
introduced  against  him  to  accomplish  his  conviction. 

The  measurement  of  the  course  must  be  methodically 
accurate.  Any  old  yard-stick  or  tape-measure  will  not  do. 
The  units  of  measurement  must  be  such  as  are  prescribed 
by  law  and  according  to  the  standards  usually  kept  by  the 
state.  For  an  officer  to  testify  to  the  fact  that  he  meas- 
ured a  certain  distance  along  the  highway  with  a  measure 
does  not  constitute  accurate  measure  of  the  distance  of  the 
course,  unless  it  is  shown  that  the  measure  used  was  ac- 
curate. He  may  state  that  he  measured  a  course  with  a 
certain  kind  of  a  measure. 


DEFENDING  SPEED  CASES.  201 

§  10.  Illegal  police  methods. 

Notwithstanding  the  fact  that  the  law  is  violated  fre- 
quently by  automobilists,  there  is  no  excuse  for  illegal 
depredations  upon  personal  security  and  private  property  on 
the  part  of  police  officials  who  arrest  persons  for  violating 
the  speed  limits.  The  use  of  ropes  stretched  across  the 
public  highways,  the  erection  of  hummocks  and  other  ob- 
structions in  the  path  of  travel,  and  the  display  of  firearms 
on  the  part  of  the  policemen  and  constables  are  unauthor- 
ized, unless  there  are  extremely  aggravating  circumstances 
connected  with  an  arrest.  General  obstructions  placed  on 
the  road  are  never  sanctioned  under  any  circumstances  con- 
nected with  automobiling. 

No  more  force  can  be  used  by  an  officer  of  the  law  in 
arresting  a  person  who  has  committed  a  misdemeanor 
than  is  absolutely  necessary  for  making  the  arrest.  This 
legal  requirement  should  be  known  and  understood  by  every 
peace  officer.  Physical  violence  is  prohibited,  and  the  use 
of  dangerous  weapons  renders  a  police  officer  liable  for 
assault,  if  it  is  unauthorized.  It  must  be  borne  in  mind 
that  violators  of  the  automobile  laws  are  guilty  of  mis- 
demeanors merely,  and  are  not  to  be  dealt  with  harshly, 
especially  where  violations  are  only  technical.  Most  auto- 
mobilists are  respectable,  law  abiding  citizens,  generally 
speaking,  and  are  persons  of  business  standing  and  integ- 
rity. Ignorant  officials  have  no  right  to  violate  the  per- 
sonal security  of  these  citizens,  and  if  they  do  they  should 
be  taught  a  lesson  in  respecting  personal  rights. 

For  example,  if  an  automobilist  is  arrested  and  he  sub- 
mits to  arrest,  indicating  no  disposition  to  escape,  there 
is  absolutely  no  w-arrant  for  poking  a  pistol  in  his  face 
and  threatening  him  with  being  filled  with  lead.  Of  course, 
if  one  who  is  arrested  atempts  to  get  away  or  escapes  from 
an  officer,  then  force  may  be  employed  to  capture  the  of- 


202  THE  LAW  OF  AUTOMOBILES. 

fender.     But  if  too  much  force  is  used  the  ofTficer  makes 
himself  guilty  of  illegal  conduct. 

§  11.  On  stop-watch  testimony. 

There  is  no  doubt  that  the  stop-watch  is  an  accurate  in- 
strument for  estimating  speed,  provided  the  watch  is  cor- 
rectly used  and  is  in  good  order,  but  where  the  speed  in- 
dicator of  an  automobile  and  the  stop-watch  of  an  officer 
conflict,  assuming  that  both  instruments  are  accurate  in 
themselves,  it  seems  that  the  speed  indicator  should  con- 
trol the  case,  since  it  is  purely  mechanical  and  involves 
no  judgment. 

Frequently  the  police  officer  times  the  automobile  by 
means  of  a  stop-watch  between  two  points  situated  a  certain 
distance  apart  while  he  is  standing  at  the  side  of  the  street, 
with  his  line  of  vision  not  at  right  angles  to  the  course  of 
the  highway,  but  diagonal.  The  officer  sees  the  automobile 
coming  almost  directly  toward  him.  If  he  is  honest,  we  will 
say  he  started  his  stop-watch  when  he  thought  the  automo- 
bile was  directly  opposite  the  first  mark  on  the  course.  The 
officer  observes  the  machine  until  it  arrives  at  a  place 
directly  opposite  the  second  mark  and  then  he  stops  his 
watch.  Upon  reading  the  number  of  seconds  taken  to 
cover  the  course,  he  is  prepared  to  testify  in  court  that  the 
automobile  was  going  25  miles  an  hour.  Is  his  testimony 
reliable,  considering  the  method  of  estimating  the  time  and 
the  lines  of  vision? 

That  the  line  of  vision  is  important  in  estimating  the 
time  of  a  passing  object  is  undoubted.  If  tlie  officer's  line 
of  vision  is  not  at  right  angles  to  the  roadway  at  the  point 
where  the  car  is  timed,  he  cannot  tell  accurately  the  moment 
at  which  it  passes  this  point.  It  must  be  borne  in  mind 
that  the  time  of  the  machine  is  taken  over  a  very  short 


[.DEFENDING  SPEED  CASES.  203 

distance,  and  a  slight  mistake  may  make  a  legal  speed  ap- 
pear illegal,  and  vice  versa.  It  is  now  almost  impossible 
to  get  the  courts  to  recognize  the  liability  of  mistakes  due 
to  imperfect  vision  of  the  timer,  but  the  time  will  soon 
come  when  there  will  be  controlling  rulings  made  concern- 
ing unreliable  stop-watch  evidence. 

To  satisfy  his  own  curiosity  in  regard  to  the  accuracy 
of  time  estimation  with  a  diagonal  line  of  vision,  the  writer 
made  a  series  of  experiments  in  which  he  was  assisted  by 
several  others.  Two  stop-watches  and  a  speed  indicator  in 
perfect  working  order  were  used.  The  result  was  as  fol- 
lows: When  timing  the  automobile  it  was  found  that  the 
stop-watch  time  was  always  less  than  the  time  found  by 
those  in  the  car  with  stop-watches  and  the  speed  indicator. 
The  experiment  was  tried  again  and  again,  and  the  time 
taken  from  the  position  shown  was  without  exception  less 
than  that  obtained  by  those  in  the  car.  This  raised  the 
question  whether,  when  observing  a  moving  vehicle  from  a 
point  in  front,  it  may  not  be  the  case  that  the  human  eye 
fails  to  see  it  as  directly  opposite  the  first  mark  until  it 
is  a  considerable  distance  beyond.  It  is  obvious  that  if 
such  a  defect  of  vision  exists  the  actual  time  of  the  machine 
is  taken  over  a  course  much  shorter  than  the  measured 
course,  which  would  make  the  estimated  speed  much  greatei 
than  the  actual. 

Further  experiments  may  produce  some  method  of  con- 
clusively disproving  inaccurate  testimony  of  an  officer,  but 
as  the  matter  now  stands  it  is  completely  within  the  officer's 
power  to  convict  the  automobilist,  and  there  is  no  way  to 
break  down  inaccurate  stop-watch  evidence,  unless  the  de- 
fendant introduces  testimony  based  upon  the  use  of  an 
accurate  speed  recording  instrument.  Where  the  correct- 
ness of  evidence  depends  upon  human  judgment,  an  errone- 
ous conclusion  is  apt  to  be  reached.     The  speed  indicator, 


204  THE  LAW  OF  AUTOMOBILES. 

to  be  of  weight  in  a  court  of  law  in  refuting  the  testimony 
of  the  stop-watch,  must  automatically  register  the  maximum 
speed  attained.^ 

1.  Taking  illegal  fees  from  antomobilist. — See  Templeton  V 
Williams.  24  Mont.  L.  Rep.   (Pa.)   192. 

Jurisdiction  of  New  York  Courts. — People  v.  De  Groff,  56  Misc. 
Rep.  429. 


CHAPTER  XVn. 

THE  GARAGE  AND  GARAGE  KEEPER. 

Sec.  1.  Garage  defined. 

2.  Garage  not  a  nuisance. 

3.  Status  of  garage  keeper. 

4.  Garage  keeper's  rights. 

5.  Liabilities  of  garage  keeper. 

6.  Keeping  and  selling  gasolene. 

7.  Liability  for  articles  stolen. 

8.  Repairs. 

§  1.  Garage  defined. 

The  garage  has  been  defined  as  the  modern  substitute 
for  the  ancient  Hvery  stable/ 

§  2.  Garage  not  a  nuisance. 

It  has  been  held  that  a  garage  does  not  constitute  a  public 
nuisance.  An  automobile  station  or  garage  constructed  on 
land  abutting  on  a  boulevard  does  not  constitute  a  common- 
law  nuisance.  Mr.  Justice  Woodward,  of  the  Appellate 
Division  of  the  Supreme  Court  of  New  York,  declared  that 
the  business  of  a  garage  keeper  "  appears  perfectly  lawful 
and  legitimate."  ^ 

1.  Smith  V.  O'Brien,  46  N.  Y.  Misc.  Rep.  325,  94  N.  Y.  Supp.  673. 

2.  Stein  v.  Lyon,  91  N.  Y.  App.  Div.  593;  Diocese  of  Trenton  v. 
Toman,  70  Atl.  Rep.  606. 

Business  of  garage  is  ofFensive.  — An  owner  of  land  divided  it 
Into  building  lots,  and  in  each  deed  inserted  a  restriction  that  the 
property  should  not  be  used  for  any  business  "  offensive  to  the 
neighborhood  for  dwelling  houses."    In  a  suit  by  one  of  the  grantees 

[205] 


20G  THE  LAW  OF  AUTOMOBILES. 

§  3.  Status  of  garage  keeper. 

One  who  receives  the  property  of  another  for  the  purpose 
of  taking  care  of  it  is,  in  law,  termed  a  "  bailee."  The 
keeper  of  a  garage  is  a  bailee  for  hire.  With  him  is 
deposited  personal  property — the  automobile — for  safe  keep- 
ing, for  which  he  is  paid  a  consideration.  The  legal  rela- 
tion established  between  the  owner  of  the  automobile  and 
the  keeper  is  that  of  bailor  and  bailee.  The  relation  is  a 
well-established  one  in  the  law,  and  from  it  flow  many  im- 
portant rights  and  responsibilities. 

§  4.  Garage  keeper's  rights. 

Of  the  garage  keeper's  rights  there  have  been  some  in- 
teresting questions  raised  in  recent  litigation.  Of  course, 
he  is  entitled  to  receive  from  the  owner  of  the  automobile 
the  agreed  price  for  storage.  But  has  the  keeper  any  way 
of  enforcing  his  right  to  compensation  other  than  a  right 
of  action  which  may  be  had  for  any  breach  of  contract, 
such,  for  example,  as  retaining  possession  of  the  automo- 

to  restrain  the  erection  of  an  automobile  garage,  it  appeared  that 
the  building  was  designed  to  accommodate  about  125  large  auto- 
mobiles, a  part  of  one  story  being  designed  for  a  repair  shop,  and 
it  being  intended  to  place  in  the  building  a  portable  forge;  that 
demonstration  cars  were  to  be  kept,  with  demonstrators  to  run 
them,  and  that  about  seventy-five  or  a  hundred  customers  were 
expected  to  store  automobiles  there,  such  machines  to  go  in  and 
out  on  an  average  of  once  a  day.  The  Supreme  Judicial  Court 
of  Massachusetts  held  that  the  maintenance  of  such  a  building  would 
constitute  a  violation  of  the  restriction  against  carrying  on  offensive 
business.     See  Evans  v.  Foss,  80  N.  E.  Rep.  587. 

Injunction  against  garage  keeper. — The  owner  of  an  auto- 
mobile garage,  licensed  to  store  one  barrel  of  gasoline  in  the  building, 
which  is  a  frame  building  and  adjacent  to  other  frame  buildings,  will 
be  enjoined  from  introducing  gasoline  into  tanks  of  the  automobile 
inside  the  building,  and  restrained  from  storing  automobiles  with 
gasoline  in  the  tanks  Inside  the  building.  O'Hara  v.  Nelson,  63 
Atl.  Rep.,  836. 


THE  GARAGE  AND  GARAGE  KEEPER.       207 

bile  under  the  claim  of  a  lien?  This  is  the  question  which 
was  raised  in  a  case  in  New  York  (Smith  v.  O'Brien,  46 
N.  Y.  Misc.  Rep.  325,  94  N.  Y.  Supp.  673),  wherein  it  was 
decided  that  where  an  automobile  is  kept  at  a  garage,  but 
which  is  used  by  the  ow-ner  so  that  the  garage  keeper's 
possession  is  not  continuous,  but  is  broken  by  the  owner 
using  the  automobile  at  pleasure,  the  keeper  has  no  lien 
for  his  charges,  and  cannot  retain  the  possession  of  the 
machine  to  enforce  payment.  Under  similar  facts,  this 
decision  would  probably  be  followed  in  other  states  where 
the  common-law  doctrines  are  administered,  since  no  lien 
can  be  had  by  any  bailee  where  the  bailee  does  not  have  and 
control  the  possession  of  the  property  delivered  to  his  care., 
A  surrender  of  possession  surrenders  the  right  to  a  lien. 
The  credit,  in  such  a  case,  is  supposed  to  have  been  fur- 
nished on  the  bailor's  personal  responsibility  only,  and  no 
recourse  against  the  property  bailed  is  supposed  to  have 
been  contemplated.  Where,  however,  continued  unbroken 
possession  is  had  by  the  garage  keeper  he  is,  like  the  ware- 
houseman and  wharfinger,  under  the  common  law  and  the 
various  statutory  provisions  of  the  states,  entitled  to  retain 
the  property  for  his  charges.  Independently  of  a  statutory, 
provision  giving  a  lien,  if  the  garage  keeper  wishes  to 
secure  a  lien  where  the  machine  is  used  by  the  owner,  he 
should  stipulate  for  the  right  to  retain  possession  of  the 
automobile  in  case  of  non-payment  of  charges.  The  lien 
law  of  New  York  has  recently  been  amended  so  as  to  give 
a  garage  keeper  a  lien  for  storage,  supplies,  and  work  and 
labor.     See  also  Gage  v.  Callanan.  113  N.  Y.  S.  227. 

§  5.  Liabilities  of  garage  keeper. 

From  the  definition  of   a  garage  one  would  naturally 
suppose  that  the  garage  keeper's  status  would  be  similar 


208 


THE  LAW  OF  AUTOMOBILES. 


to  that  of  the  keeper  of  a  Hvery  stable,  and  that  the  rights 
and  liabiHties  of  both  these  parties  would,  in  many  respects, 
be  similar.  Such  a  supposition  is.  independently  of  statute, 
substantially  correct.  The  liabilities  of  the  garage  keeper 
depend  upon  his  care  of  the  automobile  while  it  is  in  his 
custody.  He  is  bound  to  exercise  reasonable  care  and  pru- 
dence in  keeping  the  machine  in  a  safe  manner,  and  must 
furnish  reasonably  safe  accommodations.  Any  damage 
caused  to  the  machine  while  in  his  custody,  resulting  from 
the  lack  of  reasonable  diligence  and  care,  renders  the 
garage  keeper  liable  for  whatever  injuries  the  machine 
may  have  sustained.  The  failure  to  exercise  due  care 
constitutes  a  breach  of  the  contract  of  bailment. 

§  6-  Keeping  and  selling  gasolene. 

The  commissioners  of  the  District  of  Columbia  had  the 
power,  under  the  authority  of  the  Act  of  Congress  of  Jan- 
uary 26,  1887,  to  make  and  enforce  a  regulation  requiring 
a  license  for  the  storage  of  gasolene  in  the  city  of  Wash- 
ington. That  portion  of  section  3  of  the  regulations  prom- 
ulgated by  the  commissioners  of  the  District  of  Columbia, 
under  the  authority  of  the  Act  of  Congress  of  January  26, 
1887,  requiring  every  person  storing  gasolene  in  the  city 
of  Washington  to  take  out  a  license  which  recjuires  every 
such  application  to  be  referred  to  the  inspectors  of  build- 
ings and  the  chief  engineer  of  the  fire  department  for  ex- 
amination of  the  building  described  in  the  application,  who 
shall  transmit  the  application  with  the  recommendation  to 
the  assessor  of  the  district,  who  shall,  if  such  officials 
recommend,  issue  a  license  unless  otherwise  ordered  by  the 
commissioners,  is  not  void  as  an  unauthorized  delegation 
of  the  powers  conferred  upon  the  commissioners;  it  not 


THE  GARAGE  AND  GARAGE  KEEPER.       209 

being  a  delegation  of  their  authority  to  commit  to  the  ex- 
pert agents  named,  a  duty  to  ascertain  and  report  informa- 
tion important  to  the  exercise  of  their  power  to  issue  the 
Hcense,  the  propriety  of  which  issue  must  depend  upon  the 
character  and  surroundings  of  the  building  occupied.  The 
word  "  recommendation  "  in  the  regulation  is  used  in  the 
sense  of  report.^  Section  3  of  article  3  of  the  police  regu- 
lations of  the  District  of  Columbia  prohibiting  the  storage 
or  keeping  for  sale  of  inflammable  oils,  etc.,  without 
license,  and  prescribing  the  conditions  under  which  such- 
license  shall  be  granted,  was  held  to  be  valid  in  Cahill  v. 
District  of  Columbia,  23  Wash.  L.  Rep.  759,  wherein  it 
was  also  held  that  the  evidence  in  a  prosecution  in  the  police 
court  upon  an  information  charging  the  plaintiffs  in  error, 
proprietors  of  an  automobile  garage,  with  having  in  store 
and  keeping  for  sale  gasolene,  without  having  first  obtained 
a  license,  was  sufficient  to  support  a  finding  that  defendants 
were  guilty,  and  judgment  was  affirmed.  An  information 
in  the  police  court  against  the  proprietor  of  an  automobile 
storage  and  repair  house,  charging  him  with  storage  and 
keeping  gasolene  for  sale  without  a  license,  is  not  supported 
by  evidence  which  shows  that  the  defendant  had  a  license 
to  conduct  such  a  business  but  had  been  refused  a  special 
license  for  the  storage  and  sale  of  gasolene  on  the  premises; 
that  he  did  not  have  a  permit  to  store  gasolene  in  an  under- 
ground tank  half  a  block  from  his  establishment ;  that  from 
time  to  time  each  day  as  needed  he  procured  gasolene  from 
such  tank  for  the  supply  of  automobiles  in  his  establish- 
ment, which  remained  therein  from  ten  minutes  to  an  hour 
awaiting  the  arrival  of  their  ow^ners,  who  had  ordered  them 


3.  District  of  Columbia  v.  Weston,  23  App.  Div.   (D.  C.)    363,  dis- 
tinguishing United  States  v.  Ross,  5  App.  Cas.   (D.  C.)   241. 


210  THE  LA^V  OF  AUTOMOBILES. 

made  ready  for  use;  there  being  nothing  in  such  evidence 
from  wliich  the  sale  of  gasolene  could  be  inferred  and 
nothing  to  show  that  it  was  stored  upon  the  premises  within 
the  meaning  of  the  regulation.'* 

§  7.  Liability  for  articles  stolen. 

An  important  decision  has  just  been  handed  down  by 
the  Municipal  Court  of  the  City  of  New  York  which  holds 
that  the  proprietor  of  an  automobile  garage  is  liable  for 
property  stolen  from  a  locker.     The  facts  in  this  case  are 
as  follows:     The  proprietor  of  an  automobile  garage  sued 
an    automobile    owmer    for    certain    storage    charges    and 
materials  furnished.     The  automobile  owner  filed  a  counter 
claim  as  a  defense  for  $250,  the  amount  he  claimed  he  w^as 
damaged  because  of  the  loss  of  a  silk  rug  which  his  chauf- 
feur placed  in  the  locker  which  was  in  the  garage.     Judge 
Lauer,  in  deciding  that  the  garage  keeper  was  liable  for 
the  loss  of  the  rug,  in  his  opinion  says :     "  While  it  is  true 
that  no  case  precisely  similar  to  the  one  which  I  am  now- 
called  upon  to  decide  has  been  brought  to  my  attention, 
nevertheless   the   application    of    established    principles    of 
law  renders  the  decision  of  the  present  case  without  serious 
difficulty.     The  garage  is  the  modern   substitute   for  the 
ancient  livery  stable  (Smith  v.  O'Brien,  46  Misc.  325.  aff'd 
103  A.  D.  596)     There  can  be  no  doubt  that  the  relation 
between  the  plaintiff  and  the  defendant  in  regard  to  the 
robe   was  that  of  bailor  and   bailee.     The   defendant   in- 
trusted to  the  plaintiff  the  care  of  his  automobile  and  neces- 
sary accoutrement,  for  which  the  plaintiff  agreed  to  care, 
and  for  which  he  received   from  the  defendant  a  certain 


4.  Weston  v.  District  of  Columbia,  23  App.  Caa.  (D.  C.)  367. 


THE  GARAGE  AND  GARAGE  KEEPER.       211 

compensation.  The  plaintiff  supplied  to  the  defendant  a 
locker,  the  locker  being  in  the  nature  of  a  closet  with  a  lock 
attached,  and  supplied  to  the  defendant's  chauffeur  a  key 
for  the  same.  *  *  *  Under  such  circumstances,  would  the 
proprietor  of  the  garage  be  considered  a  bailee  for  hire  in 
regard  to  the  storage  of  the  robe  or  merely  a  gratuitous 
bailee  upon  the  theory  that  the  charge  made  by  the  plain- 
tiff as  proprietor  of  the  garage  was  for  the  storage  of  the 
car,  the  storage  of  the  robe  being  an  incident  thereto  and 
given  free?  He  would  be  liable  to  the  defendant  in  either 
event,  for  a  bailee  who  delivers  goods  left  in  his  charge  to 
the  wrong  party,  or  who,  after  such  goods  are  demanded  of 
him,  does  not  in  any  way  account  for  their  loss,  is  liable  to 
the  true  owner  for  their  value  (McKillop  v.  Reich,  76  A.  D. 
334,  335;  Coykendall  v.  Eaton,  55  Barber,  188).  *  *  * 
I  am  therefore  led  to  the  conclusion  that  the  plaintiff  failed 
in  the  duty  which  he  ow^ed  to  the  defendant  to  properly  care 
for  the  defendant's  property  (Claflin  v.  Meyer,  75  N.  Y. 
250,  262;  Stewart  v.  Stone,  127  N.  Y.  500,  506;  Rothser 
V.  Cosel,  39  Misc.  337).  It  cannot  properly  be  argued  that 
the  property  was  not  in  the  possession  of  the  plaintiff  be- 
cause placed  in  a  locker  to  which  the  defendant  was  sup- 
plied with  a  key,  because  in  the  case  of  Jones  v.  Morgan 
(90  N.  Y.  4,  9)  the  defendant  was  held  liable,  as  a  bailee, 
of  furniture  stored  in  a  separate  room  to  which  the  plaintiff 
was  supplied  a  key.  Thus  it  has  also  been  held  in  the  case 
of  the  proprietor  of  a  Turkish  bath  establishment  that  he 
was  responsible  for  the  loss  of  clothing  stolen  from  a  room 
assigned  to  a  customer.  In  such  a  case  the  room  was  con- 
sidered to  be  in  the  proprietor's  keeping  (Bird  v.  Everard, 
4  Misc.  104)." 


212 


THE  LAW  OF  AUTOMOBILES. 


§  8.  Repairs. 

An  important  decision  concerning  the  repairing  of  an 
automobile,  rendered  by  the  Municipal  Court  of  New  York 
City,  is  as  follows : 

Lauer,  J. — This  action  is  brought  to  recover  the  sum  of 
$267.12,  representing  three  items,  first,  the  item  of  $160, 
the  agreed  price  of  certain  repairs  to  defendant's  electric 
automobile;  secondly,  the  price  of  $78.12,  the  cost,  as  per 
agreement  of  the  parties,  of  placing  in  the  defendant's  au- 
tomobile a  new  armature;  and  thirdly,  the  item  of  $29, 
representing  certain  work,  labor  and  services  performed 
by  the  plaintiff  upon  the  same  automobile  at  the  defendant's 
request. 

I  find  great  difficulty  in  reaching  a  decision  in  this  case, 
realizing  that  if  I  decide  the  issues  in  favor  of  the  defen- 
dant the  plaintiff  must  suffer  a  considerable  loss,  in  view  of 
the  fact  that  it  has  expended  time  and  money  in  the  repairs 
which  it  undertook  to  make  upon  this  automobile.  But,  on 
the  other  hand,  if  I  decide  in  plaintiff's  favor,  the  defen- 
dant would  be  put  to  great  expense  with  comparatively 
little,  if  any,  gain  by  reason  of  the  work  which  the  plaintiff 
undertook. 

I  think  it  may  fairly  be  said  that  it  was  the  understanding 
between  the  parties  that  by  reason  of  the  repairs  which  the 
plaintiff  undertook  to  do  the  automobile  of  the  defendant 
was  to  be  put  in  first  class  running  condition,  or  at  least  in 
good  running  condition.  As  I  understand  it,  this  does  not 
necessarily  mean  that  it  should  be  put  in  perfect  mechanical 
condition.  The  question  is,  however,  can  it  fairly  be  said 
that  this  automobile  was  by  reason  of  the  repairs  which  the 
plaintiff  made  put  in  good  running  condition?  Admittedly, 
while  the  automobile  was  in  the  possession  of  the  plaintiff, 
the  only  test  of  its  running  qualities  was  made  about  the 
garage  floor.    Besides  this  the  automobile  was  operated  only 


THE  GARAGE  AND  GARAGE  KEEPER.       213 

from  the  garage  to  the  pier  in  New  York  and  from  the  pier 
to  the  garage  in  Huntington,  a  distance  of  but  a  few  miles, 
over  good  roads,  and  after  that  the  car  could  not  be,  and 
was  not,  operated  satisfactorily.  It  is  undisputed  that  when 
the  attempt  was  made  to  recharge  the  batteries,  which  had 
in  part  been  exhausted  by  the  trip  to  Huntington,  it  was 
found  that  there  was  an  interrupted  circuit  in  the  shape  oi 
the  breaking  of  certain  metal  straps  connecting  the  cells  of 
the  batteries.  While  this  in  itself  may  not  have  been  a  mat- 
ter of  very  great  importance,  and  a  repair  which  could  be 
made,  it  indicates  to  my  mind  that  the  work  was  not  done 
in  that  workmanlike  manner  which  the  defendant  had  a 
right  to  expect.  I  take  it  that  a  car  is  not  put  in  first  class 
or  in  good  running  condition  merely  because  it  happens  to 
run  a  rew  miles.  There  must  be  at  least  some  reasonable 
period  of  time  when,  with  fair  and  reasonable  usage,  under 
ordinary  conditions,  the  car  should  continue  to  be  capable 
of  operation.  In  this  instance  such  was  not  the  case.  I  do 
not  mean  to  decide  that  the  party  undertaking  repairs  of 
an  automobile  guarantees  the  duration  of  those  repairs,  but 
where,  as  here,  without  any  hard  usage,  and  with  only  a 
few  miles  of  operation,  the  car  is  found  unfit  for  further 
operation,  I  do  not  think  it  can  be  said  that  the  plaintiff 
has  reasonably  complied  with  its  contract  to  put  the  car  in 
first  class  or  even  in  good  running  condition.  So  far,  there- 
fore, as  the  item  of  $i6o,  the  contract  work,  is  concerned,  I 
have  concluded  that  the  plaintiff  must  fail  in  its  recovery. 
In  regard  to  the  items  representing  the  labor  of  the  plain- 
tiff's employees  in  attempting  to  make  the  repairs  in  Hunt- 
ington I  do  not  think  the  plaintiff  is  entitled  to  recover,  for 
they  were  mere  attempts  to  remedy  the  defective  condition 
of  the  car.  So  far  as  the  price  of  the  armature  is  con- 
cerned I  believe  that  it  is  but  fair  to  permit  the  plaintiff  to 
recover  for  the  cost  thereof,  as  this  armature  was  purchased 


214,  THE  LAW  OF  AUTOMOBILES. 

by  the  plaintiff  for  the  defendant,  at  the  defendant's  request, 
and  was  put  into  the  defendant's  car,  and  the  defendant 
undoubtedly  received  the  benefit  thereof. 

It  follows  from  these  expressions  of  my  opinion  that  judg- 
ment must  be  for  the  plaintiff  in  the  sum  of  $78.12.  See 
New  York  Law  Journal,  Dec.  4.  1908. 


CHAPTER  XVm. 
THE  HIRE  OF  AUTOMOBILES. 

Sec.  1.  General  considerations. 

2.  Ordinary  care  of  hirer. 

3.  Liability  for  servant's  acts. 

4.  Unlawful  acts  committed  by  third  parties. 

5.  Unlawful  sale  by  hirer. 

6.  Duties  and  rights  of  owner. 

7.  Keeping  in  repair. 

8.  Rights  of  hirer. 

9.  Duties  of  hirer. 

10.  Termination  of  hiring. 

11.  Surrender  and  return  of  automobile. 

12.  Compensation  for  hire. 

13.  Deviation  from  agreed  route. 

§  1.  General  considerations. 

The  hiring  of  an  automobile  from  the  owner  creates  in 
law  a  form  of  bailment  known  as  locatio  rei.  Where  the 
owner  of  personal  property  lets  it  to  another  party,  who 
is  to  pay  for  the  use  of  it,  the  contract  is  for  their  mutual 
benefit,  which  fact  is  important  in  determining  the  rights 
and  liabilities  of  the  parties.^ 

1.  Parsons  on  Contracts,  vol.  2.,  (9th  ed.)  134. 

According  to  the  foreign  and  Roman  law,  the  letter,  in  virtue  of  the 
contract,  impliedly  engages  to  allow  to  the  hirer  the  full  use  and 
enjoyment  of  the  thing  hired,  and  to  fulfil  all  his  own  engagements 
and  trusts  in  respect  to  it,  according  to  the  original  intention  of  the 
parties:  "  Prcestro',  frui  licere,  uti  licere."  This  implies  an  obliga- 
tion to  deliver  the  thing  to  the  hirer;  to  refrain  from  every  obstruc- 
tion to  the  use  of  it  by  the  hirer  during  the  period  of  the  bailment; 

[216] 


216  THE  LAW  OF  AUTOMOBILES. 

§  2.  Ordinary  care  of  liirer. 

A  party  who  hires  an  automobile  from  another  is  bound 
only  to  take  ordinary  care  of  the  machine  and  is  not  re- 
sponsible for  damage  inflicted  to  the  automobile  if  ordinary 
prudence  has  been  exercised  while  the  machine  was  in  his 
custody  as  a  bailee.^ 

The  degree  of  care,  of  course,  which  the  hirer  of  an 
automobile  should  exercise  would  depend  upon  all  the  facts 
and  circumstances  of  the  case,  but  still  it  is  only  ordinary 
care  as  the  law  defines  this  term  which  is  necessary  to  be 
exercised.  The  hirer  is  bound  to  render  such  care  in  the 
case  as  the  owner  has  a  right  to  expect  that  a  man  of  ordi- 
nary capacity  and  caution  would  take  of  the  automobile,  if 
it  were  his  own  under  the  same  circumstances.^ 

§  3.  Liability  for  servant's  acts. 

Where  an  automobile  is  hired,  the  bailee,  the  hirer,  is 
responsible  for  the  negligence  of  his  servant  the  chauffeur, 
provided  that  the  negligence  took  place  when  the  chaufifeur 
was  in  the  discharge  of  his  duty,  or  obeying  the  commands 
or  instructions  of  the  master,  the  owner,  express  or  implied.-* 

When  not  acting  within  the  authority  of  the  employment, 
the  owner  would  not  be  responsible  for  an  injury  to  the 


to  do  no  act  which  shall  deprive  the  hirer  of  the  thing;  to  warrant 
the  title  and  right  of  possession  to  the  hirer,  In  order  to  enable  hira 
to  use  the  thing,  or  to  perform  the  service;  to  keep  the  thing  in 
suitable  order  and  repair  for  the  purposes  of  the  bailment;  and, 
finally,  to  warrant  the  thing  free  from  any  fault,  inconsistent  with  the 
proper  use  or  enjoyment  of  it.  These  are  the  main  obligations 
deduced  by  Pothier  from  the  nature  of  contract;  and  they  seem 
generally  founded  in  unexceptionable  reasoning.  Story  on  Bailments, 
p.  317. 

2.  Parsons  on  Contracts,  vol.  IL,  (9th  ed.)  134,  135. 

3.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)   135. 

4.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)  136. 


THE  HIRE  OF  AUTOMOBILES.  217 

automobile  committed  by  the  chauffeur  as  a  result  of  his 
own  willful  malice,  in  which  the  master  took  no  part.** 

§  4.  Unlawful  acts  committed  by  third  parties. 

If  an  automobile  is  lost  through  theft,  or  is  injured  as 
a  result  of  violence,  the  hirer  is  only  answerable  when  im- 
prudence or  negligence  caused  or  facilitated  the  injurious 
act.^  However,  where  an  automobile  which  is  hired  out 
is  lost  or  injured,  the  hirer  is  bound  to  account  for  such  loss 
or  injury.  When  this  is  done,  the  proof  of  negligence  or 
want  of  due  care  is  thrown  upon  the  bailor,  and  the  hirer  is 
not  bound  to  prove  affirmatively  that  he  used  reasonable 
careJ 

§  5.  Unlawful  sale  by  hirer. 

If  the  hirer  of  an  automobile  should  sell  it  without  au- 
thority to  a  third  party  the  owner  or  bailor  may  institute  an 
action  of  trover  against  even  a  bona  iide  purchaser,  one 
who  purchases  the  machine  innocently  believing  that  the 
hirer  had  the  title  and  power  to  sell.^ 

§  6.  Duties  and  rights  of  owner. 

The  owner  of  the  automobile,  or  the  party  letting  it  out, 
is  obliged  to  deliver  the  automobile  hired  in  a  condition 
to  be  used  as  contemplated  by  the  parties;  nor  may  the 
owner  interfere  with  the  hirer's  use  of  the  automobile  while 
the  hirer's  interest  is  in  it,  or  right  in  it  continues.  Even 
if  the  hirer  abuses  the  automobile,  although  the  owner  may 
then,  as  it  is  said,  repossess  himself  of  his  property,  if  he 
can  do  so  peaceably,  he  may  not  do  so  forcibly,  but  must 

5.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)  137. 

6.  Parsons  on  Contracts,  vol  II.,  (9th  ed.)  138. 

7.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)   138. 

8.  Parsons  on  Contracts,  vol.  II.,   (9th  ed.)  138. 


218  THE  LAW  OF  AUTOMOBILES. 

bring  an  action.  If  such  misuse  of  the  automobile  termi- 
nates the  original  contract  of  bailment  the  owner  may  de- 
mand the  automobile,  and,  on  refusal,  bring  trover;  or,  in 
some  cases,  he  may  bring  the  action  of  trover  without  de- 
mand.® 

§  7.  Keeping  in  repair. 

The  owner  of  an  automobile  who  lets  it  out  for  a  term 
should  keep  the  vehicle  in  good  order,  that  is,  in  proper 
condition  for  use;  and  if  expenses  are  incurred  by  the  hirer 
for  this  purpose  the  owner  must  repay  them.  There  is  some 
uncertainty  on  this  point,  however.  The  true  principle 
would  seem  to  be  that  the  owner  is  not  bound  (unless  by 
special  agreement,  express  or  implied  by  the  particular  cir- 
cumstances) to  make  such  repairs  as  are  made  necessary  by 
the  natural  wear  and  tear  of  the  automobile  in  using,  or 
by  such  accidents  as  are  to  be  expected,  but  is  bound  to  pro- 
vide that  the  automobile  be  in  good  condition  to  last  dur- 
ing the  time  for  which  it  is  hired,  if  that  can  be  done  by 
reasonable  care,  and  afterwards  is  liable  only  for  such  re- 
pairs as  are  made  necessary  by  unexpected  causes.^** 

§  8.  Rights  of  hirer. 

By  the  contract  of  hire,  the  hirer  of  the  automobile  ac- 
quires a  qualified  property  in  it  which  he  may  maintain 
against  all  persons  except  the  owner,  and  against  him  as 
far  as  the  terms  and  conditions  of  the  contract,  express  or 
implied,  may  warrant.  During  the  time  for  which  the  hirer 
is  entitled  to  the  use  of  the  automobile,  the  owner  is  not 
only  bound  not  to  disturb  him  in  that  use,  but  if  the  hirer 


9.    Parsons  on  Contracts,  vol.  II..  (9th  ed.)  139,  140. 
10.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)  140,  141. 


THE  HIRE  OF  AUTOMOBILES.  219 

returns  it  to  the  owner  for  a  temporary  purpose,  he  is 
bound  to  return  it  to  the  hirer.^^ 

§  9.  Duties  of  hirer. 

There  is  an  implied  obHgation  on  the  part  of  the  hirer 
to  use  the  automobile  only  for  the  purpose  and  in  the  man- 
ner for  which  it  was  hired.  If  the  automobile  is  used  in  a 
different  way,  or  for  a  longer  time,  the  hirer  may  be  re- 
sponsible for  a  loss  thence  accruing,  although  by  inevitable 
casualty.  In  general  the  hirer  must  not  abuse  the  auto- 
mobile, but  where  during  misuser  the  machine  is  lost,  it 
seems  that  trover  would  not  lie,  unless  the  owner  can  show 
that  the  loss  was  caused  by  misuser. ^^ 

§  10.  Termination  of  hiring. 

The  contract  for  the  hire  of  an  automobile  may  be  ter- 
minated by  the  expiration  of  the  time  for  which  the  vehicle 
was  hired,  or  by  the  act  of  either  party  within  a  reasonable 
time,  if  no  time  is  fixed  by  the  contract,  as  by  the  agreement 
of  both  parties  at  any  time ;  or  by  operation  of  law  if,  for 
instance,  the  hirer  becomes  the  owner  of  the  automobile,  or 
by  the  destruction  of  the  automobile.  If  it  is  destroyed 
without  the  fault  of  either  party,  before  any  use  of  it  by 
the  hirer,  he  has  nothing  to  pay ;  if  after  some  use,  it  may 
be  doubted  how  far  the  aversion  of  the  law  of  apportionment 
would  prevent  the  owner  from  recovering  pro  tanto;  prob- 
ably, however,  where  the  nature  of  the  case  admitted  a 
distinct  and  just  apportionment,  it  would  be  applied.  Either 
party  being  in  fault  would,  of  course,  be  amenable  to  the 
other.     The  contract  might  wisely  provide  for  such  a  con- 


11.  Parsons  on  Contracts,  vol,  II.,  (9th  ed.)   142. 

12.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)   141,  142. 


230  THE  LAW  OF  AUTOMOBILES. 

tingency  as  the  destruction  of  the  automobile  in  such  man- 
ner.^' 


§  11.  Surrender  and  return  of  automobile. 

The  hirer  of  an  automobile  must  surrender  the  machine 
at  the  appointed  time,  and  if  no  time  is  specified  in  the  con- 
tract, then  whenever  called  upon  after  a  reasonable  time, 
and  what  constitutes  a  reasonable  time  is  to  be  determined 
by  all  the  facts  and  circumstances  of  each  particular  case.^^ 

§  12.  Compensation  for  hire. 

The  party  letting  an  automobile  for  hire  acquires  an  ab- 
solute right  to,  and  property  in,  the  compensation  due  for  the 
vehicle  hired ;  and  the  compensation  or  price,  when  not 
fixed  by  the  parties,  must  be  a  reasonable  price,  to  be  de- 
termined by  the  circumstances.  Of  course,  where  a  definite 
sum  is  stipulated,  the  sum  agreed  upon  controls.^' 

§  13.  Deviation  from  agreed  route. 

In  Deming  v.  Johnson,  in  the  Supreme  Court  of  Errors 
of  Connecticut  (April,  1908,  69  Atl.,  347),  which  was  an 
action  against  a  livery  stable  keeper  for  injuries  to  one  who 
had  hired  a  team  from  him,  due  to  the  insufficiency  of  the 
harness,  there  was  evidence  showing  that  plaintiff,  with 
knowledge  that  the  horse  was  easily  frightened  by  automo- 
biles, had  driven  it  about  ten  miles  beyond  the  destination 
agreed  upon,  the  road  to  which  was  seldom  traveled  by 
automobiles,  and  while  being  driven  upon  a  road  much  fre- 
quented by  automobiles  the  horse  was  friglitened  by  a  pass- 
ing automobile,  which  was  the  cause  of  the  accident  by 


13.  Parsons  on  Contracts,  vol.  11.,   (9th  ed.)    143. 

14.  Parpons  on  Contracts,  vol.  II.,   (9th  ed.)   142. 

15.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)   143. 


THE  HIRE  OF  AUTOMOBILES.  221 

which  plaintiff  was  injured.  It  is  a  criminal  offense  in  Con- 
necticut for  any  person  hiring  a  horse  willfully  to  make 
any  false  statement  relative  to  the  time,  place  or  manner 
of  using  it,  with  intent  to  defraud  any  person.  The  court 
charged  that  the  mere  fact  that  plaintiff  hired  the  team  to 
go  to  a  certain  destination  and  drove  beyond  that  point  to 
the  place  of  the  accident  would  not  prevent  a  recovery,  unless 
it  contributed  to  the  injury,  in  which  case  the  verdict  should 
be  for  defendant.  This  was  proper  to  charge  that,  if  the 
team  was  easily  frightened  by  proximity  to  automobiles, 
and  plaintiff  knew  of  this,  and  yet  drove  on  a  road  not  con- 
templated in  the  hiring,  and  more  traveled  by  automobiles 
than  the  one  contemplated,  and  if  plaintiff  by  driving  on 
such  road  came  in  proximity  to  an  automobile,  and  such 
proximity  so  brought  about  contributed  to  the  accident,  the 
verdict  should  be  for  defendant.  The  court  said  in  part: 
"  It  is  true  that  the  plaintiffs  were  not  barred  of  redress 
merely  because  they  had  violated  the  terms  of  a  contract  or 
the  provisions  of  a  statute.  The  violation  of  the  statute  or  of 
the  contract  of  hiring  by  driving  upon  a  different  road  from 
that  named  in  the  agreement  of  hiring  was  a  material  fact 
only  as  it  constituted  a  breach  of  a  duty  which  the  plaintiffs 
owed  the  defendants  respecting  the  prevention  or  avoidance 
of  such  an  accident  as  that  that  happened  ( Monroe  v.  Hart- 
ford St.  R'y,  76  Conn.,  201-206,  56  Atl.,  498).  If,  there- 
fore, driving  upon  the  road  where  the  accident  happened  in- 
stead of  upon  that  named  in  the  contract  of  hiring,  could 
not  have  contributed  to  cause  the  accident,  it  was  a  fact  of 
no  consequence  in  the  case.  But  in  the  rescription  in  the 
complaint  of  the  manner  in  which  the  accident  happened  it 
is  alleged  as  a  material  fact  that  the  horse  became  frightened 
at  a  passing  automobile.  Obviously  the  defendants'  alleged 
negligent  act,  as  stated  in  the  complaint,  was  their  failure 
to  furnish  the  plaintiffs  with  reins  which  would  not  break 


222  THE  LAW  UF  AUTOMOBILES. 

\vhen  the  driver  was  in  a  proper  manner  attempting  to  con- 
trol the  horse  when  frightened.  If  the  plaintiffs'  act  of 
so  driving  upon  a  different  road  from  that  specified  in  the 
contract  of  hiring  was  the  cause  of  the  coming  in  proximity 
to  an  automobile,  it  follows  that  that  act  could  have  con- 
tributed to  cause  the  accident.  Whether  the  plaintiffs  were 
driving  upon  a  different  road  than  that  for  which  the  team 
had  been  let  to  them,  and,  if  so,  whether  that  fact  was  the 
cause  of  their  coming  in  proximity  to  an  automobile,  and 
whether  the  proximity  to  the  automobile  contributed  to 
cause  the  accident,  were  all  questions  of  fact  which  the  court 
in  the  statement  complained  of  properly  submitted  to  the 
jury.  The  question  was  not  one  of  contributory  negligence, 
but  whether  the  plaintiff's  wrongful  act  in  driving  upon  a 
different  road  in  violation  of  the  contract  of  hiring  contri- 
buted to  cause  the  injury,  although  in  respect  to  barring  a 
recovery  by  the  plaintiffs  there  is  no  material  distinction 
between  such  a  wrongful  act  and  contributory  negligence. 
(Broschart  v.  Tuttle,  59  Conn.,  1-20,  21  Atl.  925,  11 
L.  R.  A.,  33.    See  Palmer  v.  Mays,  80  Conn.,  353,  68  Atl., 

369)." 


CHAPTER  XIX. 

THE  CHAUFFEUR. 

Sec.  1.  Chauffeur  defined. 

2.  Origin  of  term, 

3.  Chauffeur's  status. 

4.  Liability  of  master  for  chauffeur's  acts — in  general. 

5.  Chauffeur  acting  contrary  to  authority. 

6.  Duties  of  chauffeur. 

7.  Amount  and  degree  of  care. 

8.  Rights  of  chauffeur. 

g  1.  Chauffeur  defined. 

The  term  chauffeur  means  one  who  manages  the  running- 
of  an  automobile.^     The  term  in  legal  significance  may  be 

1.  Web.  Int.  Diet.,  Supp.,  p.  39. 

The  chauffeur  is  engaged  in  manual  labor. — Smith  V. 
Associated  Omnibus  Co.  Div.  Ct.  916. 

Probably  the  best  definition  of  the  term  chauffeur  is  that 
the  word  designates  a  person  who  habitually  and  as  an  occupation 
drives  a  motor  vehicle  commonly  called  an  automobile,  for  hire 
generally,  or  for  a  master  or  employer  who  engages  the  services  of 
the  employee  at  regular  wages.  A  person  who  owns  an  automobile 
and  carries  on  a  hacking  business  personally  operating  the  machine, 
although  he  drives  "  for  hire  "  and  may  be  said  to  be  a  chauffeur, 
nevertheless,  he  is  not  a  "  chauffeur  "  within  the  meaning  of  many 
automobile  enactments  and  does  not  come  within  commonly  accepted 
understanding  of  the  word.  The  automobile  law  of  the  Province  of 
Quebec  defines  the  word  "  chauffeur "  as  meaning  a  person  skilled 
in  operating  motor  vehicles  who  habitually  drives  such  vehicles  as  a 
means  of  livelihood.  See  Sec.  1,  Subd.  2,  of  the  Motor  Vehicle  Law 
of  Quebec,  1906.     This  Is  a  most  excellent  definition. 

In  Missouri  the  automobile  law  uses  the  term  "  Auto  driver  "  to 
designate  the  chauffeur.     The  statute  provides  as  follows:     "Auto 

[223] 


224  THE  LAW  OF  AUTOMOBILES. 

said  to  mean  any  person  operating  a  motor  vehicle,  as  a 
mechanic,  employee,  or  for  hire.  This  is  the  definition  of 
the  term  contained  in  the  New  York  Motor  Car  Act  of 
1903.  and  is  substantially  the  same  in  some  other  jurisdic- 
tions. 


driver"  shall  be  construed  to  mean  any  person  operating  a  motor 
vehicle  as  mechanic,  paid  employee,  or  for  hire. 
See  Sec.  1,  of  the  Missouri  Motor  Vehicle  Law. 
In  New  York,  as  is  the  case  in  several  of  the  States,  the  term  is 
expressly  defined  by  the  motor  vehicle  law  as  meaning  any  person 
operating  a  motor  vehicle  as  a  mechanic,  employee  or  for  hire. 

See  Sec.  1,  Subd.  2,   (5)   of  the  Motor  Vehicle  Law  of  New  York, 
1904. 

Legal  result   of  definition  of  term.— All  persons  coming  with- 
in   the    definitions    of    the    term    "  chauffeur,"    as    provided    in    the 
various  automobile  enactments,  are  subject  to  the  regulations  intended 
to  govern  chauffeurs.     Conversely,  all  persons  who  do  not  come  with- 
in the  definition  are  exempt  from  those  provisions  of  law  intended  to 
govern    that    class    of    individuals.     The    importance    of    the    term 
including  every  person  intended  and  who  should  be  regulated  as  a 
chauffeur,   and   excluding   every   individual    who    should    not   be   so 
regulated,    is   apparent.     Take    for   example,    the    New    York   Motor 
Vehicle   Law  of  1904,  which   has  been   copied  extensively  by   auto- 
mobile legislation   throughout  the  United   States.     Three  classes  of 
persons  are  required  to  register  with  the  Secretary  of  State:  namely, 
owners,  chauffeurs,  manufacturers  and  dealers.     If  a  person  does  not 
belong  to  either  one  of  these  classes  of  individuals,  he  is  not  subject 
to  the  regulations.     A  person  may  be  neither  a  owner  nor  a  chauffeur 
under  the  1904  New  York  law.  in  which  case  he  is  at  liberty  to  drive 
a  hired  or  borrowed  automobile  without  a  license.     This  is  a  defect 
in  laws  similar  to  the  one  mentioned  and  should  be  remedied.     The 
true  purpose  of  regulations  controlling  the  chauffeur,  is  to  regulate 
all  automobile  drivers  who  are  not  otherwise  permitted  by  license 
to  drive  an  automobile.    Some  of  the  State  laws  compel  owners  to 
obtain   a  driver's   license  before  they   can   operate  a  motor  vehicle 
which  has  been  registered.     Other  State  laws  permit  the  owner  to 
drive   his   automobile    upon    registration    of    the    machine    with    the 
proper  office.     It  will  be  seen  that  the  terra  "  chauffeur  "  should  be 
as  comprehensive  in  its  meaning  as  is  intended  by  the  law. 

All   chauffeurs  are   necessarily   automobile   drivers,   but   all   auto- 
mobile drivers  are  not  chauffeurs. 


THE  CHAUFFEUR.  225 

§  2.  Origin  of  term. 

A  chauffeur  was  a  member  of  the  bands  of  outlaws, 
during  the  reign  of  terror  in  France,  who  roamed  over  the 
northeastern  part  of  the  country  under  the  lead  of  John  the 
Skinner,  or  Schinderhaunes.  They  garroted  men  and  wo- 
men, and  roasted  their  feet  to  compel  them  to  disclose  hid- 
den treasure.  In  1803  rigorous  measures  were  taken  which 
resulted  in  their  suppression.  With  the  increasing  use  of 
the  automobile  as  a  means  of  recreation  and  transportation, 
the  term  chauffeur  was  applied  to  the  driver  who  operated 
the  carriage  and  the  mechanic  who  was  carried  to  look 
after  the  machinery  and  fuel.  The  origin  of  this  use  of 
the  term  is  found  in  France,  where  automobiling  first  found 
favor  as  a  sport,  the  word  chauffeur  being  there  employed 
to  designate  a  fireman  or  stoker.^ 

§  3.  Chauffeur's  status. 

The  legal  status,  duties,  and  responsibilities  of  the  chauf- 
feur or  operator  of  a  motor  car  are  of  vital  interest,  not 
only  to  the  motorist,  but  to  all.  You  who  employ  chauffeurs, 
by  reason  of  employment,  have  interest  at  stake.  Those 
who  are  employed  as  chauffeurs  have  not  only  serious 
responsibilities  of  a  personal  nature,  but  are,  to  a  great 
extent,  the  guardians  of  their  employer's  interests.  The 
chauffeur  or  operator  of  an  automobile  occupies  towards  his 
employer  and  the  public  a  serious  position,  one  which 
compares  favorably  in  the  necessity  for  prudence,  dili- 
gence, and  intelligence  with  that  of  the  railroad  engineer 
or  master  of  a  ship. 

§  4.  Liability  of  master  for  chaaffeur's  acts— in  general. 

A  chauffeur  under  employment  is,  in  law,  a  servant, 
and  the  relation  existing  between  the  employer  and  em- 

2.  The  New  International  Encyclopedia,  vol.  IV.,  p.  427. 
15 


22Q  THE  LAW  OF  AUTOMOBILES. 

ployed  is  that  of  master  and  servant.  From  this  relation 
many  rights  and  liabilities  flow.  The  general  rule  that  the 
master  is  liable  for  the  wrongful  injurious  acts  of  the  serv- 
ant or  employee,  committed  in  the  course  of  his  employ- 
ment, applies  in  the  operation  of  an  automobile  by  one  for 
hire.  If  a  chauffeur  negligently,  while  about  his  em- 
ployer's business,  runs  down  a  pedestrian,  who  is  in  the 
exercise  of  due  care,  the  employer  is  liable  in  damages 
and  so  is  the  chauffeur.  But  the  relation  of  master  and 
servant  must  exist  at  the  time  in  order  to  charge  the  mas- 
ter.^   See  Chapter  XX. 

§  5.  Chauffeur  acting  contrary  to  authority. 

Where  a  chauffeur  uses  his  employer's  automobile  for 
his  own  personal  pleasure  and  contrary  to  authority,  a 
party  negligently  injured  by  the  car  cannot  hold  the  em- 
ployer liable,  since  the  operator  of  the  vehicle  was  not,  at 
the  time,  acting  for  his  employer  and  within  the  scope 
of  his  employment ;  however,  the  chauffeur  is  lialile  in  dam- 
ages. Thus,  it  has  been  held  in  New  York  that  an  absent 
owner  of  an  automobile  was  not  liable  for  the  negligence 
of  the  chauffeur  committed  at  a  time  when  he  was  not 
engaged  in  the  owner's  business."*  But  where  it  was  shown 
that  the  defendant  was  the  owner  of  an  automobile,  and 
that  the  operator  or  chauffeur  was  in  his  employment 
for  the  purpose  of  operating  the  machine,  it  was  held  that 

3.  See  Reynolds  v.  Buck,    (Iowa  1905)    103  N.  W.  Rep.  946. 

It  is  the  rule  of  the  common  law  that  the  master  is  reponsible  for 
the  acts  of  the  servant  whom  he  selects,  and  through  whom  in  legal 
contemplation  he  acts,  provided  that  the  particular  act  was  done  by 
the  servant  in  the  carrying  out  of  the  duty  given  to  htm  by  his 
master,  and  for  the  purpose  of  doing  what  he  has  been  sent  out  to  do. 
Fiero  on  Torts,  p.  80. 

4.  Clark  v.  Buckmobile  Co.,  107  N.  Y.  App.  Div.  120;  Stewart  v. 
Baruch,  93  N.  Y.  Supp.  161. 


THE  CHAUFFEUR.  227 

there  was  a  sufficient  prima  facie  showing  that  the  chauf- 
feur at  the  time  of  the  colHsion  was  acting  within  the  scope 
of  his  employment.^  In  Collard  v.  Beach,  8i  N.  Y.  App. 
Div.  582,  it  was  held  that  the  court  erred  in  refusing  to  give 
the  following  charge  to  the  jury  as  requested :  "  If  the 
jury  finds  either  that  the  defendant  left  the  automobile 
in  charge  of  his  son  to  take  it  home,  or  in  charge  of  his 
son  and  coachman  together  to  take-  it  home,  or  in  charge 
of  the  coachman  alone,  and  the  coachman  neglected  his  duty 
in  that  regard  and  allowed  the  son  to  run  the  machine,  and 
by  the  negligence  of  the  son  the  accident  occurred,  without 
contributory  negligence  on  the  plaintiff's  part,  then  in  either 
case  the  defendant  is  responsible  and  liable  for  that  negli- 
gence and  its  consequences."  Concerning  the  liability  of 
the  owner  of  an  automobile  for  the  acts  of  one  operating  the 
machine  an  interesting  case  arose  in  Iowa.  In  Reynolds  v. 
Buck,  decided  by  the  Supreme  Court  of  Iowa  in  June,  1905 
(103  N.  W.  Rep.  946),  it  appeared  that  the  defendant  who 
dealt  in  automobiles  decorated  one  for  use  in  a  parade,  and 
after  the  parade  directed  that  the  automobile  which  stood 
in  front  of  the  store  be  taken  inside,  and  he  then  left.  His 
son,  employed  by  the  defendant  as  a  clerk,  and  who  had 
been  given  a  holiday  that  day,  coming  upon  the  machine 
where  it  stood,  invited  a  lady  friend  to  ride,  and  while  he 
was  driving  plaintiff's  horse  took  fright  at  the  machine, 
whereby  plaintiff  was  injured.  It  was  held  that  defendant 
was  not  liable,  even  conceding  the  son's  negligence.  The 
court  said :  "  At  the  time  of  the  accident  causing  the 
plaintiff's  injuries  the  defendant  Vv^as  a  dealer  in  agricul- 
tural implements,  buggies,  automobiles,  etc.,  in  the  city  of 
Davenport,  and  his  son,  Emil  J.  Buck,  was  in  his  employ 
as   clerk.     There   was  an   automobile   parade   in   the   city 

5.  Stewart  v,  Baruch,  93  N.  Y.  Supp.  161, 


228  THE  LAW  OF  AUTOMOBILES. 

of  Davenport  in  the  afternoon  of  the  day  in  question,  and, 
on  the  solicitation  of  the  committee  having-  the  matter  in 
charge,  the  defendant  decorated  an  electric  automobile 
belonging  to  him,  and  the  machine,  operated  by  one  of  his 
daughters,  had  a  place  in  the  parade.  The  son.  Emil  J., 
^vho  had  been  employed  in  his  father's  establishment  for 
some  time,  was  given  a  lay-off  or  holiday  for  the  parade. 
He  spent  the  forenoon  of  the  day  in  decorating  a  steam 
automobile  that  he  intended  to  use  in  the  parade,  and  in 
the  afternoon,  during  a  part  of  the  time  that  the  parade 
was  in  progress,  he  and  some  of  his  friends  used  the 
steam  machine  on  the  streets.  They  then  returned  it  to 
the  defendant's  place  of  business  and  left  it  on  the  premises; 
and  soon  thereafter  the  son  and  his  companions,  young  men 
and  women,  went  to  the  river.  In  the  meantime  the  parade 
was  concluded,  and  the  electric  machine  was  returned  to 
the  defendant's  place  of  business  by  the  daughter,  and 
left  on  the  street  in  front  of  the  store.  The  defendant  was 
present  at  the  time  and  directed  an  employee  to  take  it 
in,  and  soon  thereafter  he  left  the  store.  A  short  time  after 
the  defendant  had  left  the  store  the  son,  Emil  J.,  and  a 
young  lady  friend  returned  thereto,  and  she,  desiring  to 
go  home  from  there,  accepted  his  invitation  to  ride  home 
in  the  automobile.  He  took  her  to  her  home  by  the  nearest 
route,  and  on  his  way  back  to  his  father's  store  the  plaintiff's 
horse  became  frightened  at  the  machine,  and  the  accident 
happened,  resulting  in  the  injury  complained  of.  Conced- 
ing, for  the  purpose  of  this  appeal,  that  the  son  was  neg- 
ligently operating  the  machine  at  the  time  of  the  accident, 
was  such  negligence  chargeable  to  the  defendant  under  the 
evidence?  We  are  clearly  of  the  opinion  that  it  was  not. 
The  direct  evidence  all  shows  that  his  use  of  the  electric 
automobile  was  solely  for  the  pleasure  and  convenience 
of  the  young  lady  and  himself,  and  that  it  was  in  no  way 


THE  CHAUFFEUR.  229 

or  sense  connected  with  his  employment  or  with  the 
defendant's  business.  The  mere  fact  that  the  automobile 
still  wore  the  decorations,  and  that  it  might  on  account 
thereof  attract  attention  and  incidentally  advertise  the  de- 
fendant's business,  would  not  have  justified  the  jury  in 
finding  that  the  son  was  about  his  father's  business  at  the 
time.  An  inference  so  far-fetched  would  not  be  permitted 
to  control  and  destroy  direct  and  positive  evidence  to  the 
contrary  (Meyer  v.  Houck,  85  Iowa  319,  52  N.  W.  Rep. 
235).  The  son  had  been  given  a  holiday  and  was  master 
of  his  own  time  on  that  day.  This  is  conclusively  shown. 
The  defendant  had  ordered  the  machine  put  away,  and  did 
not  know  that  his  son  wished  or  intended  to  use  it.  It 
was  taken  and  used  for  the  son's  own  pleasure,  and  we 
think  the  verdict  was  propertly  directed  for  the  defendant." 
See  Chapter  XX. 

§  6.  Duties  of  chauffeur. 

The  careful  and  prudent  chauffeur  constantly  should  have 
in  mind  the  legal  significance  of  his  acts  especially  in  refer- 
ence to  their  effect  on  the  liability  of  his  employer.  There 
are  many  specific  precautions  of  which  every  chauffeur  or 
operator  of  an  automobile  should  have  knowledge  in  order 
to  keep  himself  and  his  employer  within  the  bounds  of 
freedom  from  legal  liability.  First,  the  statutory  require- 
ments or  precautions  of  the  state  wherein  the  machine  is 
run  should  be  known  and  obeyed.  The  provisions  in  refer- 
ence to  lamps  when  running  at  night,  the  displayment  of 
numbers,  the  necessity  for  locking  the  machine  when  left 
temporarily  in  the  street,  requirements  pertaining  to  speed, 
meeting  horses,  and  other  matters  should  be  so  familiar 
that  correct  action  will  take  place  automatically  and  without 
taking  time  for  unnecessary  thought.  The  statutory  re- 
quirements are  not  all,  however,  that  the  prudent  automo- 


230  THE  LAW  OF  AUTOMOBILES. 

bile  operator  must  understand.  The  courts  have  commenced 
to  lay  down  rules  in  reference  to  operating  motor  vehicles, 
and  these  are  as  binding  on  the  operator  as  the  legislative 
regulations.  Let  us  see  what  the  courts  have  said.  For 
example,  the  Nczv  York  statute  provides  that  a  person 
operating  a  motor  vehicle  shall  at  request  or  on  signal  by 
putting  up  the  hand,  from  a  person  riding,  leading,  or 
driving  a  restive  horse,  bring  such  motor  vehicle  imme- 
diately to  a  stop.  Similar  provisions  exist  in  many  of 
the  states  which  have  enacted  automobile  legislation.  It 
will  be  noticed  that  the  autoist  is  required  to  stop  his 
car  on  signal.  There  is  no  necessity,  however,  for  the 
giving  of  such  a  signal  as  provided  by  statute.  The  mot- 
orist is  obliged  to  stop  even  if  no  signal  has  been  given 
where  his  machine  is  apparently  causing  danger.  The 
dutv  to  stop  in  such  cases  is  independent  of  statute,  and  it 
has  been  expressly  so  held  by  the  Supreme  Court  of  Illinois 
and  other  courts.^  Knowledge  of  this  rule  and  other  rules 
which  have  been  promulgated  by  the  courts  is  of  import- 
ance. 

§  7.  Amount  and  degree  of  care. 

The  amount  and  degree  of  care  which  the  operator 
of  an  automobile  should  exercise  depends  upon  the  cir- 
cumstances of  each  particular  case,  including  the  condition 
of  the  road,  the  existence  or  nonexistence  of  traffic,  and 
other  facts.  Reasonable  care  must  be  exercised  to  avoid 
accidents.  More  than  ordinary  care  must  be  exercised 
when  children  are  met  in  the  street."  The  law,  however, 
is  not  all  against  the  automobilist  and  in  favor  of  other 


6.  Christie  v.  Elliott,  21G  111.  31,  1  L.  R.  A.   (N.  S.)    124,  74  N.  E. 
Rep.  1035. 

7.  Thies  v.  Thomas,  77  N.  Y.  Supp.  276. 


THE  CHAUFFEUR.  231 

parties.  The  motorist  also  has  rights  which  must  be  re- 
spectea.  If  he  has  compHed  with  the  law  his  rights  on  the 
road  are  equal  to  the  rights  of  other  parties.  He  has  the 
right  to  assume,  and  to  act  upon  the  assumption,  that  every 
person  whom  he  meets  will  also  exercise  the  ordinary  care 
and  caution  according  to  the  circumstances,  and  will  not 
negligently  or  recklessly  expose  himself  to  danger,  but 
rather  make  increased  exertion  to  avoid  colHsion.^ 

No  matter  how  great  the  rate  of  speed  may  be  which 
the  law  permits,  the  operator  still  remains  bound  to  anti- 
cipate that  he  may  meet  persons  on  a  public  street,  and 
he  must  keep  his  machine  under  such  control  as  will  enable 
him  to  avoid  a  collision  with  another  person  also  using 
care  and  caution.  If  necessary  he  must  slow  down  and  even 
stop.  No  blowing  of  a  horn,  or  of  a  whistle,  nor  the 
ringing  of  a  bell  or  gong,  without  an  attempt  to  slacken  his 
speed,  is  sufficient,  if  the  circumstances  at  a  given  point  de- 
mand that  the  speed  should  be  slackened  or  the  machine 
stopped,  and  such  a  course  is  practicable,  or,  in  the  exercise 
of  ordinary  care  and  caution  proportionate  to  the  circum- 
stances, should  have  been  practicable.  The  true  test  is,  that 
he  must  use  all  the  care  and  caution  which  a  careful  and 
prudent  driver  would  have  exercised  under  the  same  circum- 
stances. The  operator  of  an  automobile  is  not  exempt 
from  liability  for  a  collision  in  a  public  street  by  simply 
showing  that  at  the  time  of  the  accident  he  did  not  run 
at  a  rate  of  speed  exceeding  the  limit  allowed  by  law.^ 

In  turning  corners  a  person,  whether  an  adult  or  an 
infant,  has  the  right  to  assume  that  the  operator  of  an 
automobile  will  exercise  care  and  respect  the  rights  of 
pedestrians.     'Due  care  in  operation  requires,  under  such 


8.  Thies  v.  Thomas,  77  N.  Y.  Supp.  276. 

9.  Thies  v.  Thomas,  77  N.  Y.  Supp.  276. 


232  THE  LAW  OF  AUTOMOBILES. 

circumstances,  that  the  vehicle  should  be  slowed  down 
and  operated  with  diligence.  At  such  a  place  the  operator 
is  bound  to  take  notice  that  people  might  be  crossing,  or 
entering  thereon;  and  this  obligation  on  the  part  of  the 
operator  of  the  machine  is  one  which  a  pedestrian  has  a 
riglit  to  assume  will  be  observed.^" 

"When  the  automobile  is  temporarily  left  unattended  in 
the  street,  certain  precautions  should  be  taken  by  the  chauf- 
feur to  prevent  the  machine  from  being  started  by  inter- 
meddlers,  but  it  is  not  the  operator's  duty,  as  correctly  stated 
in  the  opinion  of  a  New  York  case,  to  chain  the  machine  to 
a  post  or  to  fasten  it  so  that  it  will  be  absolutely  impossible 
for  a  third  party  to  start  it.  Only  reasonable  care  is  re- 
quired to  be  exercised  in  such  a  case.  Of  course,  where  a 
statute  requires  a  certain  manner  of  locking  the  machine,  the 
requirement  must  be  complied  with.^^ 

§  8.  Rights  of  chauflfeur. 

Ordinarily  where  the  chaufYeur's  contract  for  service  is 
for  a  certain  time,  if  the  employer  discharges  the  chauffeur 
before  the  expiration  of  the  term  of  employment,  the  em- 
ployer is  still  liable  for  the  chauffeur's  pay  unless  the  latter 
has  given  cause  by  showing  himself  unable  or  unwilling  to 
do  what  he  has  undertaken  to  do.^^  But  if  the  contract  is 
for  a  time  certain,  and  the  chauffeur  leaves  without  cause 
before  the  time  expires,  it  is  held  that  a  servant  in  such  a 

10.  Buscher  v.  New  York  Transportation  Co.,  94  N.  Y.  Supp. 
796. 

11.  Berman  v.  Schultz.  40  Misc.  (N.  Y.)  212,  84  N.  Y.  Supp.  292. 
holding  that  where  a  chauffeur  left  an  automobile  in  the  street  tem- 
porarily, after  turning  off  the  power  and  applying  the  brake,  and 
the  automobile  was  started  by  the  willful  act  of  boys,  resulting  in  a 
collision  with  a  wagon,  the  act  of  the  boys  was  the  proximate  cause 
of  the  injury,  and  there  was  no  liability  on  the  part  of  the  owner. 

12.  Parsons  on  Contracts,  vol.   IL,    (9th  ed.)    34. 


THE  CHAUFFEUR.  233 

case  has  no  claim  for  services  already  rendered.  However, 
if  prevented  from  performing  his  duties  by  sickness,  or 
similar  inability,  the  chauffeur  may  recover  pay  for  what  he 
has  done  on  a  quantum  meruit}^  It  must  not  be  forgotten 
that  the  contract  between  the  chauffeur  and  his  employer  is 
mutual.  The  employer  has  a  claim  against  the  chauffeur  for 
neglect  of  duty,  and  the  employer  does  not  waive  this 
claim  by  paying  the  chauffeur  and  continuing  him  in  his 
service.^"* 


13.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)  36-40. 

14.  Parsons  on  Contracts,  vol.  II.,  (9th  ed.)  48. 


CHAPTER  XX. 

CHAUFFEUR'S  AUTHORITY  TO  BIND   HIS  EMPLOYER. 

(See  Chapter  XIX.). 

Sec.  1.  General  considerations. 

2.  When  the  employer  is  liable. 

3.  Chauffeur  teaching  operation  of  automobile. 

4.  Responsibility  under  English   act. 

5.  Presumption  of  authority. 

6.  Ownership  of  vehicle. 

7.  What  must  be  shown. 

8.  Chauffeur  driving  for  himself. 

9.  When  relation  of  master  and  servant  does  not  exist. 

10.  Authority  to  purchase  supplies. 

11.  Pleading. 

§  1 .  General  considerations. 

The  question  to  what  extent  an  employer  is  legally  re- 
sponsible for  the  acts  performed  and  contracts  made  by  his 
chauffeur  is  one  which  affects  all  automobilists  who  employ 
drivers.  There  are  probably  more  court  decisions  concern- 
ing the  owner's  liability  for  his  chauffeur's  conduct  in 
driving  than  regarding  any  other  legal  aspect  of  motoring. 
The  following  propositions  have  now  been  definitely  estab- 
lished. 

1.  The  chauffeur  is  an  employee  and  a  servant  of  his  em- 
ployer while  engaged  in  the  business  for  which  he  is  hired. 

2.  He  is  employed  to  operate  and  drive  his  employer's 
car  only  at  such  times  and  to  such  places  as  designated  by 
his  employer  personally,  or  his  agent,  either  expressly  or  by 
implication. 

[234] 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.     235 

3.  Any  driving  for  the  chauffeur's  own  pleasure  at  times 
or  to  places  not  authorized  expressly  or  by  implication  by  the 
employer  does  not  constitute  driving  for  the  employer,  and 
an  injury  occurring  while  so  driving  will  not  bind  the  em- 
ployer. 

4.  In  order  to  hold  the  owner  of  an  automobile  respon- 
sible for  an  alleged  injury  caused  by  any  other  person  driv- 
ing his  machine,  the  relation  of  master  and  servant  must 
have  existed  at  the  time. 

5.  The  borrower  of  an  automobile  cannot  make  the  per- 
son loaning  it  responsible  for  the  former's  conduct  or  acts. 
There  is  no  relation  of  master  and  servant  in  such  a  case. 
There  is  no  hiring. 

Although  as  a  general  proposition  it  is  laid  down  that  an 
owner  of  an  automobile  may  not  be  held  legally  liable  for 
the  acts  of  the  chauffeur  which  are  committed  when  not 
engaged  in  the  owner's  business,  it  is,  however,  difficult  to 
determine  in  every  case  when  a  chauffeur  does  not  act  for 
his  employer.  He  is  hired  to  drive  the  automobile  and 
to  care  for  it,  but  the  terms  of  his  employment,  generally 
speaking,  authorize  him  to  drive  only  as  directed.  In  other 
words,  he  has  no  independent  action  of  his  own  volition.  If 
he  is  to  drive  with  authority  to  a  certain  city,  for  example, 
he  must  have  either  express  or  implied  permission  to  do 
so.  If  he  orders  supplies  for  the  automobile  he  must  also 
have  similar  authority. 

The  owner  of  an  automobile  is  not  necessarily  liable  for 
an  injury  committed  by  his  chauffeur  while  driving  the  au- 
tomobile with  the  owner's  consent,  if  the  chauffeur  was  driv- 
ing at  the  time  for  his  own  pleasure  or  business.  This  is 
what  the  Appellate  Division  of  the  Supreme  Court  of  New 
York  has  just  decided,  and  decided  correctly,  in  the  case 
of  Cunningham  v.  Castle,  reported  in  the  New  York  Law 
Journal  of  Monday,  July  20,  1908,  127  N.  Y.  App.  Div. 


236  THE  LAW  OF  AUTOMOBILES. 

580.  Ill  N.  Y.  S.  1057.  The  owner  had  loaned  the 
chauffeur  his  automobile  for  a  certain  length  of  time, 
during  which  time  an  injury  was  inflicted  on  the  public 
highways.  The  opinion  of  the  court  is  based  upon  the 
theory  that  there  was  no  relationship  of  master  and  servant 
when  the  injury  was  inflicted.  The  consent  to  use  the  ma- 
chine did  not  make  the  owner  liable.  The  case  was  the  same 
as  any  other  where  a  f)erson  loans  one  vehicle  to  another. 
Although  the  court  in  this  case  did  not  cite  the  authorities, 
there  are,  nevertheless,  two  decisions  in  this  country  which 
hold  that  the  owner  of  an  automobile  cannot  be  held  legally 
responsible  for  the  acts  of  a  borrower. 

Just  exactly  under  what  circumstances  an  owner  is  re- 
sponsible for  the  acts  of  his  chauffeur,  and  when  authority, 
or  at  least  the  presumed  relation  of  master  and  servant,  does 
or  does  not  exist  is  a  question  not  often  easy  to  decide. 

In  the  case  mentioned  Judge  Houghton  dissented.  The 
facts  in  this  case  as  disclosed  by  the  evidence  were  as  fol- 
lows : 

The  plaintiff  called  the  defendant  as  a  witness,  who  testi- 
fied :  "  I  owned  a  Mercedes  automobile  and  employed  one 
Harry  Boes  as  a  chauffeur  at  that  time.  I  had  been  out  in 
the  automobile  the  day  before  this  [accident]  occurred.  Af- 
ter my  return  the  automobile  was  left  in  the  possession  of 
Harry  Boes,  my  chauffeur.  At  that  time  he  asked  me  if 
I  would  loan  him  the  machine  to  go  uptown  on  some  busi- 
ness for  himself.  I  told  him  yes,  but  to  hurry  back;  only 
to  be  gone  a  short  while ;  come  right  back.  That  was  all 
that  took  place  between  the  chauffeur  and  myself  as  to  loan- 
ing him  the  machine.  It  was  about  1 1  o'clock  at  night  that 
I  returned  to  my  apartment  and  loaned  Harry  Boes  the 
machine." 

Boes  testified  :  "  I  was  Mr.  Castle's  chauffeur,  and  had 
been  in  his  employment  at  the  time  of  this  accident  to  the 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER,     237 

best  of  my  knowledge  about  two  and  a  half  or  three  months. 
On  the  night  before  this  injury  happened,  which  was  Sun- 
day night,  previous  to  the  time  when  I  went  out  when  the 
accident  happened,  I  had  been  out  with  Mr.  Castle.  I  left 
him  at  the  Pierrepont  Apartment  in  Thirty-second  street, 
right  near  Broadway.  On  leaving  him  I  spoke  to  him  about 
borrowing  the  machine  or  as  to  letting  me  have  the  machine 
for  purposes  of  my  own  and  my  own  pleasure.  I  said :  *  Mr. 
Castle,  may  I  use  your  car  for  an  hour  or  two?  I  just  want 
to  take  a  run  up  to  Harlem  and  be  back  in  an  hour  or  an 
hour  and  a  half  or  two  hours.'  Then  he  said :  *  All  right, 
be  careful;  if  anything  happens  be  sure  to  notify  me  right 
away.'  That  was  his  consent.  I  took  it  out  for  purposes 
of  my  own  entirely,  for  my  own  pleasure,  and  not  on  any 
business  of  Mr.  Castle's.  It  was  about  ten  minutes  to  ii 
that  I  asked  Mr.  Castle  for  permission  to  take  it  out." 

The  chauffeur  then  went  to  Shanley's,  where  he  was 
joined  by  two  women  and  a  friend  He  took  them  uptown, 
and  was  coming  down  Eighth  avenue  from  150th  street 
when  he  struck  the  plaintiff  at  Eighty-first  street  and  Central 
Park  West,  about  half  past  i  in  the  morning. 

In  considering  these  facts  the  court  lays  down  the  follow- 
ing propositions  of  law  which  are  controlling  in  similar 
cases : 

"  From  the  foregoing  cases  we  may  deduce  the  following 
rules  as  thoroughly  established :  First,  that  a  master  is  re- 
sponsible for  the  negligence  of  his  servant  when  engaged 
about  the  master's  business,  and  within  the  scope  of  his 
employment;  second,  that  a  master  is  not  responsible  for 
the  negligence  of  his  general  servant  if  at  the  time  of  the 
negligence  he  has  become  ad  hoc  the  servant  of  another,  and 
engaged  in  the  business  of  that  other  and  under  his  direction 
and  control ;  third,  that  the  master  is  not  responsible  for  the 
negligence  of  his  general  servant  if  the  negligent  act  was 


238  THE  LAW  OF  AUTOMOBILES. 

committed  by  the  servant  not  in  the  prosecution  of  the  mas- 
ter's business  but  in  the  course  of  some  private  enterprise  of 
his  own;  fourth,  that  even  if  in  the  prosecution  of  that 
private  enterprise  the  servant  uses  the  instrumentahties  of 
the  master  for  his  own  purposes,  without  the  knowledge 
and  consent  of  the  master,  the  master  is  not  responsible." 

In  response  to  the  contention  that  the  automobile  is  a  dan- 
gerous instrumentality,  and  that  having  been  entrusted  to 
the  chaufifeur  the  master  is  liable  because  of  its  dangerous 
character,  the  court  said  : 

"  The  automobile  is  not  a  dangerous  device.  It  is  an  ordi- 
nary vehicle  of  pleasure  and  business.  It  is  no  more  dan- 
gerous than  a  team  of  horses  and  a  carriage;  or  a  gun,  or 
a  sailboat,  or  a  motor  launch.  If  a  game-keeper  had  bor- 
rowed his  master's  gun  and  had  gone  from  the  estate  on  a 
hunting  expedition  of  his  own  and  had  negligently  shot  a 
man,  would  the  master  be  responsible  because  he  was  using 
that  instrument  if  carelessly  used,  the  gim?  I  do  not  think 
that  the  question  of  ignorance  or  consent  of  the  master  has 
any  bearing  whatever  upon  his  liability.  The  fact  that 
the  servant  has  used  the  horses  or  the  automobile  without 
his  consent  has  probative  force  upon  the  proposition  as  to 
whether  or  not  the  servant  was  engaged  in  the  master's 
business  and  was  acting  within  the  scope  of  his  employ- 
ment." 

Judge  Houghton  in  the  dissenting  opinion  argues  that : 
"  While  a  powerful  automobile  may  not,  strictly  speaking, 
be  deemed  a  dangerous  instrument,  it  may  become  so  if 
recklessly  driven.  They  are  so  dangerous  that  the  Legis- 
lature has  prescribed  that  their  ownership  must  be  registered, 
and  the  driver  licensed,  and  that  speed  in  different  locali- 
ties must  be  regulated.  If  a  railroad  official  should  loan 
a  locomotive  to  one  of  the  company's  engineers  for  the 
purpose  of  hurriedly  visiting  a  distant  locality  it  could  hardly 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.     239 

be  said  that  the  engineer  alone  would  be  liable  for  injuries 
inflicted  upon  third  persons.  I  appreciate  that  the  case  is 
on  the  border  line,  but  it  seems  to  me  that  the  chauffeur 
was  engaged  in  the  business  of  the  master." 

The  great  importance  of  the  above  decision  rests  upon  the 
fact  that  consent  to  the  use  of  the  car  is  immaterial. 

The  legal  doctrine  of  agency  are  playing  an  important 
part  in  everything  that  has  to  do  with  the  automobile,  and 
our  courts  are  now  frequently  called  upon  to  determine 
the  rights  and  liabilities  of  parties  arising  out  of  the  acts 
of  their  agents.  The  vital  question,  on  which  every  con- 
troversy hinges,  is,  "  Was  the  party  acting  as  an  agent  or 
servant  at  the  time  he  committed  the  unlawful  act  or  made 
or  broke  the  contract?  " 

The  most  important  relation  of  agency  (so  far  as  the 
automobile  industry  is  concerned)  is  that  of  employer  and 
chauffeur.  The  latter  manages  and  operates  the  car,  and 
while  so  doing  renders  his  employer  liable  for  whatever 
negligent  injuries  are  committed  by  him  while  acting  under 
authority  from  the  owner ;  but  when  a  chauffeur  is  or  is  not 
acting  according  to  authority  is  a  matter  difficult  to  deter- 
mine. For  example,  a  chauffeur  takes  the  owner's  car  and 
drives  for  his  own  pleasure.  While  so  driving  he  runs  over 
a  pedestrian.  Is  the  owner  liable?  The  courts  have  held 
that  in  such  a  case  the  employer  is  not  liable,  since  at  the 
time  the  chauffeur  did  not  act  for  his  employer.  It  is  also 
held  that  an  injured  party  who  attempts  to  hold  the  owner 
of  an  automobile  liable  for  damages  done  by  a  chauffeur 
must  allege  and  prove  that  the  employee  acted  for  the  mas- 
ter. There  are  a  large  number  of  decisions  to  this  effect, 
although  in  Missouri  the  contrary  is  held.  The  doctrine 
there  is  that  the  injured  party  need  not  allege  and  prove  that 
the  chauffeur  was  acting  for  his  employer,  but  that  the 


240  THE  LAW  OF  AUTOMOBILES. 

law  would  presume  that  a  chauffeur  acts  according  to  in- 
structions while  driving  the  car  of  another. 

There  may  be  cases  where  it  is  doubtful  whether  one  occu- 
pies the  relation  of  chauffeur  to  the  owner  of  the  machine. 
In  order  to  hold  an  owner  liable  the  relation  of  master  and 
servant  must  exist,  and  unless  this  relation  is  established, 
there  can  be  no  liability  on  the  part  of  the  owner.  For  in- 
stance, where  an  owner  lets  out  his  car  to  another  on  com- 
mission, the  other  party  using  it  in  a  livery  business  and  be- 
ing himself  the  driver,  it  is  held  that  there  is  no  liability  on 
the  part  of  the  owner  for  the  acts  of  the  driver,  since  there 
is  no  relation  of  master  and  servant  between  them. 

As  to  whether  a  chauffeur  is  such  an  agent  of  his  em- 
ployer that  he  may  bind  his  employer  for  certain  current 
supplies  purchased,  there  can  be  but  little  doubt.  It  is  the 
general  custom  for  chauffeurs  to  purchase  supplies  and 
parts,  and  a  dealer  or  manufacturer  has  the  right  to  pre- 
sume that  a  chauffeur  acts  for  his  principal  in  making  such 
contracts.  For  a  chauffeur  to  obtain  a  secret  commission  on 
the  sale  of  supplies  or  parts  to  the  detriment  of  his  em- 
ployer is  clearly  illegal  under  both  the  common  and  statu- 
tory law.  It  is  his  duty  to  give  to  his  employer  every  pos- 
sible advantage  to  be  gained  from  any  transaction  connected 
with  his  employment. 

Of  the  contractual  rights  and  liabilities  arising  out  of 
automobile  agencies  it  is  not  an  easy  matter  to  determine  in 
all  cases  if  the  party  is  the  agent  of  another.  Take,  for  ex- 
ample, automobile  salesmen.  Are  they  agents  of  dealers  or 
manufacturers?  In  a  certain  sense  they  are,  while  in  an- 
other sense  they  are  not.  In  certain  ways  they  may  bind 
their  principals  and  cannot  bind  them  in  other  respects. 
Ordinarily  they  are  to  be  considered  more  in  the  light  of 
brokers  than  of  agents.  However,  representations  and 
statements  made  by  sales  agents,  if  fairly  within  the  scope 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.    241 

of  what  might  be  deemed  their  general  authority,  will  bind 
their  principals.  Owing  to  the  facts  that  automobile  manu- 
facturers and  dealers  occupy  a  more  or  less  fiduciary  rela- 
tion toward  their  customers  and  the  public,  it  will,  no  doubt, 
be  the  tendency  of  the  courts  to  construe  all  contracts,  repre- 
sentations and  statements  most  strongly  in  favor  of  the 
public  and  against  dealers  and  manufacturers. 

The  phrase  "  unauthorized  use  of  automobiles  'Ms  very 
comprehensive,  and  includes  many  acts  which  are  not  only 
civilly  wrong,  warranting  an  action  for  damages,  but  which 
are  criminal ;  as,  for  example,  driving  without  a  license  or 
without  numbers,  violating  the  speed  regulations,  etc.  How- 
ever, what  we  wish  to  discuss  here  is  that  use  which  is  not 
strictly  criminal  and  prohibited  by  statutory  enactment,  but 
which  violates  the  common  law  right  of  the  owner  of  the 
vehicle,  constituting  an  invasion  of  his  right  of  property. 
The  law  books  call  it  a  conversion  of  the  property  belonging 
to  another. 

The  conversion  of  an  automobile  is  of  very  different  oc- 
currence, owners  often  complaining  that  their  chauffeurs 
make  personal  use  of  the  cars  which  they  are  hired  to  use 
only  in  the  interest  of  their  employers.  Ordinarily,  the  au- 
thority which  a  chauffeur  possesses  over  the  car  entrusted 
to  his  care  is  very  broad.  It  is  part  of  his  duties  to  keep 
his  car  in  good  working  condition,  and  in  order  to  do  this 
it  is  often  necessary  to  test  or  try  the  car  out,  which  is 
ordinarily  done  While  the  owner  is  not  in  the  machine.  The 
scope  of  the  chauffeur's  authority  may  not  be  subject  to  pre- 
cise definition,  but  it  is  certain  that  he  has  no  implied  au- 
thority to  drive  the  car  for  his  own  pleasure  or  that  of  his 
friends.  Such  authority  is  not  implied  in  the  relation  which 
exists  between  c'hauffeur  and  employer.  Of  course,  if  the 
owner  permits  the  chauffeur  the  use  of  the  automobile  for 
the  latter's  own  pleasure,  then  such  a  use  is  illegal.  Also, 
16 


242  THE  LAW  OF  AUTOMOBILES. 

if  the  employer  has  in  the  past  permitted  his  chauffeur  to 
use  the  automobile,  the  subsequent  personal  use  of  it  may 
be  authorized  by  implication  from  previous  express  au- 
thority. Wherever,  however,  there  is  neither  express  nor 
implied  permission  to  use  the  car,  its  personal  use  by  the 
chauffeur  constitutes  conversion.  In  some  of  the  states  it 
is  expressly  prohibited  by  law  for  a  chauffeur  to  use  his 
employers'  automobile  without  permission,  under  penalty 
of  prosecution. 

Garage  keepers,  who  have  entrusted  to  them  machines 
either  for  storage  or  repair,  may  not  lawfully  use  them  for 
any  purpose  inconsistent  with  the  relation  existing  between 
them  and  their  patrons.  If  a  machine  is  left  for  the  purpose 
of  making  repairs,  naturally  the  garage  keeper  possesses 
the  authority  to  run  the  machine  in  whatever  manner  is 
necessary  in  order  to  determine  what  repairs  are  needed, 
and  also  to  determine  if  the  machine  is  in  good  working 
order  after  the  necessary  repairs  have  been  made;  but  if 
he  uses  or  permits  the  machine  to  be  used  for  his  own  in- 
terests, then  he  commits  a  conversion  of  the  property  and  is 
liable  in  damages  therefor. 

A  hirer  of  an  automobile  also  commits  a  conversion  if 
he  rents  a  car  from  an  owner  for  driving  to  a  certain 
named  place,  and  then  drives  to  some  other,  farther  point, 
and  he  may  be  held  liable  in  damages,  especially  if  the  ma- 
chine should  break  down  while  being  driven  over  the  un- 
authorized course.  In  hiring  a  vehicle  for  driving  to  any 
particular  place  one  is  not  obliged  to  take  any  definite  route, 
and  if  one  hires  a  machine  for  a  certain  length  of  time  he 
may  use  the  machine  as  he  pleases  as  far  as  distances  are 
concerned,  provided  he  returns  it  at  the  stipulated  time.  In 
making  use  of  an  automobile  of  another,  no  matter  in  what 
capacity,  it  is  the  safest  plan  to  have  the  authority  defined 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.    243 

at  the  time  the  relation  is  created,  and  then  to  use  it  strictly 
in  conformity  with  this  authority. 

§  2.  When  the  employer  is  liable. 

The  owner  of  an  automobile  is  liable  for  any  acts  of  his 
chauffeur  done  within  the  scope  of  his  employment,  and  if 
a  chauffeur  is  acting*  in  the  exercise  of  his  employer's  orders, 
and  by  his  negligence  causes  injury  to  a  third  person,  even 
though  the  chauffeur's  act  was  not  necessary  to  a  proper 
performance  of  his  duty,  the  employer  is  responsible.  Thus, 
where  an  owner  instructed  his  chauffeur  to  go  down-stairs 
in  the  hotel  at  which  they  were  stopping  and  procure  oil 
for  the  lamps  of  his  automobile,  and  the  chauffeur,  instead 
of  following  these  directions,  ran  the  automobile  to  a  nearby 
garage  for  the  purpose  of  obtaining  the  oil,  negligently 
colliding  with  a  wagon  on  the  way,  the  owner  was  liable 
for  the  resulting  damage.  Bennett  v.  Busch,  67  Atl.  188. 
In  John  M.  Hughes  Sons  Co.  v.  Bergen  &  West  Side  Auto- 
mobile Co.,  67  At.  Rep.  1018,  it  was  held  that  the  trial 
judge  was  justified  in  finding  that  the  plaintiff's  automobile 
was  damaged  through  the  negligence  of  the  defendant's 
employee  while  he  was  using  the  car  in  the  defendant's  busi- 
ness and  acting  within  the  scope  of  his  employment. 

§  3.  Chauffeur  teaching^  operation  of  automobile. 

Where  the  contract  of  sale  of  an  automobile  provided 
that  an  instructor  should  be  furnished  by  the  company  sell- 
ing the  machine  to  give  lessons  in  its  operation  to  the  pur- 
chaser and  that  the  instructor  would  adjust  and  test  the 
machine  until  the  lessons  were  completed,  the  company  was 
held  to  be  responsible  to  the  purchaser  for  any  damage  to 
the  automobile  through  the  negligence  of  the  instructor 
while  the  latter  was  acting  within  the  scope  of  his  duties. 
But  it  was  held  that  the  owner  could  not  recover  damages 


244  THE  LAW  OF  AUTOMOBILES. 

from  the  company  for  the  detention  of  the  automobile  while 
it  was  being  repaired  where  he  offered  no  proof  as  to  the 
market  rate  of  hire  of  a  similar  machine.  Burnham  v.  Cen- 
tral Automobile  Exchange,  67  Atl.  Rep.  429. 

Where  a  chauffeur  was  employed  to  teach  the  owner's 
son  to  run  an  automobile  for  the  family  use,  it  was  held 
that  the  relation  of  master  and  servant  existed  so  as  to 
hold  the  owner  liable  for  the  negligence  of  the  chauffeur  in 
causing  injury  to  a  pedestrian.  $1200  was  not  excessive 
damages  where  the  plaintiff  was  63  years  of  age  and  was 
injured  on  the  head  and  hip.  Hiroux  v.  Baum,  Wis.  118 
N.  W.  533. 

§  4.  Responsibility  under  English  act. 

Under  the  British  Motor  Car  Act  of  1903.  the  person 
causing  or  permitting  a  motor  car  to  be  used  contrary  to 
regulations  is  held  responsible  as  well  as  the  driver  in  cer- 
tain instances.  Pettitt,  Law  of  Motor  Cars,  62;  Pettitt, 
Law  of  Heavy  Motor  Cars,  58;  see  also  Lewis  v.  Amorous, 
59  S.  E.  Rep.  338. 

§  5.  Presumption  of  authority. 

"^vMiere  an  automobile  is  operated  by  a  person  employed 
for  that  purpose,  it  will  be  presumed  that  he  is  acting  within 
the  scope  of  his  authority  and  about  his  employer's  busi- 
ness ;  and  such  presumption  is  not  changed  by  the  fact  that 
the  chauffeur,  in  operating  the  automobile,  makes  a  detour 
from  the  direct  route  between  his  employer's  home  and  a 
place  to  which  he  was  directed  by  his  employer  to  go.  See 
Long  V.  Xute,  100  S.  W.  Rep.  511. 

§  6.  Ownership  of  vehicle. 

Where  a  corporation  admitted  in  its  answer  that  it 
operated  and  controlled  vehicles  used  in  a  city,  and  did  not 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.     245 

give  evidence  that  it  did  not  operate  a  particular  vehicle 
bearing  its  name,  proof  that  the  particular  wagon  colliding 
and  injuring  the  property  of  another  bore  the  same  name 
of  the  corporation  established  prima  facie  ownership  of 
the  wagon.  Gershel  v.  White's  Express  Co.,  113  N.  Y. 
Supp.  919. 

§  7-  What  must  be  shown. 

In  an  action  against  an  owner  of  an  automobile  to  re- 
cover damages  for  personal  injuries  resulting  from  being 
run  down  by  the  machine,  the  plaintiff  must  show  not  only 
the  fact  that  the  person  in  charge  was  the  defendant's  serv- 
ant, but  the  further  fact  that  he  was  at  the  time  engaged 
on  the  master's  business,  with  the  master's  knowledge,  and 
by  the  master's  direction.  Evidence  of  mere  ownership  of 
the  machine  is  insufficient.  Lotz  v.  Hanlon,  217  Penn.  St., 
339;  66  Atl.  Rep.  525, 

The  complaint  of  one  who  has  been  injured  by  an  auto- 
mobile should  show  either  expressly  or  by  necessary  impli- 
cation, not  only  the  existence  of  the  relation  of  master  and 
servant,  but  also  the  connection  of  the  act  with  the  employ- 
ment.   Lewis  V.  Amorous,  59  S.  E.  Rep.,  338. 

In  Lotz  V.  Hanlon,  217  Penn.  St.,  339,  66  Atl.  Rep.  525, 
it  is  held  that  where  a  party  sues  to  recover  for  injuries 
received  by  being  run  down  by  an  automobile,  the  party 
suing  must  not  only  show  the  person  in  charge  of  a  machine 
was  at  the  time  the  owner's  servant  or  chauffeur,  but  also 
that  he  was  at  the  time  engaged  on  the  master's  business, 
with  the  master's  knowledge  and  direction. 

The  defendant  owned  an  automobile  which  broke  down 
on  the  way  from  Atlantic  City  to  Philadelphia,  and  which 
he  then  left  in  charge  of  his  driver,  with  directions  to  re- 
pair it  and  bring  it  on  to  Philadelphia.  After  the  driver 
had  reached  the  Delaware  River,  and  while  waiting  for  the 


246  THE  LAW  OF  AUTOMOBILES. 

ferry,  he  consented  to  take  a  third  person  in  the  machine  to 
a  place  about  a  mile  back  on  the  road,  and  while  making 
the  trip  his  car  collided  with  a  horse  and  bugg>'.  injuring 
the  plaintiff.  The  court  held  that  under  the  circumstances 
the  owner  of  the  automobile  was  not  liable  for  the  injury, 
since  his  servant,  the  chauffeur,  was  not  engaged  in  his,  the 
owner's,  business  at  the  time.  Patterson  v.  Kates,  150  Fed. 
Rep.,  481. 

The  plaintiff,  who  was  the  owner  of  an  automobile  which 
he  desired  to  sell,  was  about  to  deliver  the  machine  to  the 
defendant  for  sale  on  commission,  when  the  defendant's 
servant  L.  directed  the  plaintiff's  servant  to  retain  the  ma- 
chine until  the  succeeding  day,  which  was  Sunday,  that  the 
servant  L.  might  show  it  to  a  prospective  purchaser,  the  de- 
fendant's garage  being  closed  on  Sunday.  This  was  agreed 
to,  whereupon  on  Sunday  L.  took  the  machine,  and  while 
using  it  on  a  pleasure  trip  of  his  own  it  was  struck  by  an 
electric  car  and  destroyed.  The  court  held  that  L.  while 
so  using  a  machine  was  not  acting  in  the  course  of  the  de- 
fendant's business,  and  that  the  latter  was  not  therefore 
responsible  for  the  loss  of  the  machine.  Evans  v.  A.  L. 
Dyke  Automobile  Supply  Co.,  loi  So.  West.  Rep.,  1152. 

In  Vonderhorst  Brewing  Co.  v.  Armhine,  56  At.  Rep., 
833;  98  Md.,  406,  it  is  held  that  where  it  is  proved  that 
the  vehicle  belongs  to  the  defendant,  the  burden  of  proof 
is  on  the  defendant  to  show  that  the  driver  was  not  his 
agent.  This  ruling  is  contrary  to  the  great  weight  of  au- 
thority, excepting  in  Missouri,  where  the  doctrine  is  the 
same  as  in  Maryland.  See  Long  v.  Nute  (Mo.),  100  S. 
W.  Rep.,  511. 

IWhere  the  plaintiff  was  injured  by  the  defendant's  auto- 
mobile, operated  by  the  defendant's  chauffeur,  but  the  de- 
fendant testified  that  the  chauffeur  was  acting  witliout  his 
authority  and  against  his  express  commands,  failure  of  the 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.    247 

defendant  at  the  time  he  was  served  with  the  summons  and 
complaint  to  deny  that  the  chauffeur  was  acting  at  the  time 
of  the  accident  as  his  employee  and  in  the  performance 
of  duties  for  him,  cannot  be  considered  as  proof  that  the 
agent  had  authority.     McEnroe  v.  Taylor,   107  N.  Y.  S. 

§  8.  Chauffeur  driving  for  himself. 

Where  the  chauffeur  commits  injury  while  driving  for 
himself  his  employer  is  not  liable.  Sawyer  v.  Mitchell,  35 
Supr.  Ct.  (Pa.)  69. 

Where  a  chauffeur  took  an  automobile  for  his  own  use 
to  a  different  place  from  where  he  was  directed  to  take  it, 
it  was  held  that  the  relation  of  master  and  servant  did  not 
exist.  In  this  case  the  chauffeur  was  ordered  to  take  an 
automobile  to  an  hotel  and  he  went  a  mile  out  of  the  road 
in  an  opposite  direction  to  make  a  call,  and  was  then  on 
his  way  to  the  hotel  when  he  caused  the  injury,  but  this 
was  while  he  was  on  an  errand  for  himself.  The  court 
said,  "  knowledge  that  M.  was  habitually  careless  in  the 
operation  of  the  automobile  has  no  tendency  to  prove  that 
the  defendant  ought  to  have  known  or  anticipated  that  he 
would  steal  the  vehicle,  or  use  it  for  his  own  purposes  con- 
trary to  the  owner's  explicit  order."  Danforth  v.  Fisher, 
(N.  H.)  71  Atl.  535. 

Where  the  defendant,  when  sued  for  repairs  to  his  auto- 
mobile, counterclaimed  that  plaintiff  had  used  the  automo- 
bile without  the  defendant's  knowledge  or  consent,  it  was 
held  that  the  defendant  was  only  entitled  to  recover  the 
reasonable  hire  of  the  machine  for  its  actual  use  as  found 
by  the  jury.    Bush  v.  Fourcher,  59  S.  E.  Rep.,  459. 

Where  the  defendant  claimed  that  the  plaintiff  had  used 
his  automobile  without  his  knowledge  or  consent,  whether 


24S  THE  LAW  OF  AUTOMOBILES. 

the  plaintiff  made  a  practice  of  doing  so  was  held  to  be  im- 
material.   Bush  V.  Fourcher,  59  S.  E.  Reporter,  459. 

§  9-  When  relation  of  master  and  servant  does  not  exist. 

Where  a  daughter  19  years  of  age  was  accustomed  to  use 
an  automobile,  asking  permission  when  her  father  was  at 
home,  but  sometimes  taking  it  without  permission  when  he 
was  not  at  home,  it  was  held  that  the  relation  of  master 
and  servant  did  not  exist  where  she  was  not  driving  other 
members  of  the  family,  but  was  using  the  machine  as  a 
means  of  recreation  and  pleasure  for  herself  and  her  own 
friends.    Doran  v.  Thomsen,  N.  J.  71  Atl.  296. 

In  Braverman  v.  Hart.  105  N.  Y.  Supp.  107,  the  Supreme 
Court  of  New  York  held  that  the  owner  of  an  automobile 
who  delivered  it  to  a  person  not  under  his  control  or  di- 
rection, under  an  agreement  that  he  was  to  use  it  for  hire 
and  pay  the  owner  the  purchase  price  out  of  the  money  de- 
rived from  its  use,  was  not  liable  for  an  accident  by  the 
person's  negligence  in  operating  the  automobile. 

In  Parsons  v.  Wisner,  113  N.  Y.  Supp.  922,  it  was  held 
that  the  defendant  was  not  liable  for  injuries  to  the  plain- 
tiff in  a  collision  with  the  defendant's  automobile,  while  the 
machine  was  being  operated  by  a  chauffeur  employed  by 
the  defendant's  brother,  who  had  control  of  the  automobile 
as  bailee.  Citing  Cunningham  v.  Castle,  127  App.  Div. 
580;  III  N.  Y.  Supp.  1057. 

If  a  motor-car  company  supply  a  chauffeur  and  provide 
a  garage  for  a  privately  owned  motor-car,  is  the  cliauffeur 
to  be  considered  the  servant  of  the  company  or  of  the 
owner  of  the  car  during  the  time  that  he  is  in  charge  of 
it?  This  was  the  question  for  determination  in  the  recent 
English  case  of  Norris  v.  Wolsley  Tool  and  Motor-Car 
Company,  where  the  company  was  sued  for  damages  caused 
to  the  plaintiff  by  the  negligence  of  its  chauffeur  while  in 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.     249 

charge  of  a  car  belonging  to  a  Mr.  Aird.  The  chauffeur 
was  directed  by  Mr.  Aird  to  drive  him  to  a  railway  station, 
thence  to  go  on  to  another  place,  and  later  to  fetch  Mr. 
Aird  from  the  station  again.  The  chauffeur,  having  fin- 
ished part  of  his  work,  chose  to  deviate  from  his  route 
in  order  to  go  home  on  his  own  account,  and,  in  returning 
to  resume  the  work,  negligently  ran  into  and  injured  the 
plaintiff.  It  was  contended  that  the  chauffeur,  being  at  the 
time  of  the  accident  engaged  on  Mr.  Aird's  business  and 
subject  to  his  directions,  must  be  deemed  to  be  his  servant 
for  the  time  being;  but  the  court  preferred  to  follow  the 
leading  cases  of  Ouarman  v.  Burnett,  6  M.  &  W.  499,  and 
Jones  V.  Liverpool  Corporation,  14  Q.  B.  Div.  890,  and  to 
hold  that  the  chauffeur  was  all  the  time  the  company's  serv- 
ant, for  whose  negligence  they  were  responsible.  Law 
Times,  December  14th,  1907. 

An  express  company  hired  an  automobile  from  another 
corporation  for  the  purpose  of  delivering  packages,  and  the 
former  corporation  employed  the  chauffeur,  whose  sole 
duty  it  was  to  operate  the  vehicle,  he  being  accompanied  by 
a  servant  of  the  express  company  who  delivered  the  pack- 
ages. After  the  packages  had  been  delivered  the  vehicle 
returned  to  the  express  company's  office,  where  the  chauf- 
feur informed  the  person  in  charge  that  there  was  some 
trouble  with  the  machinery,  and  the  chauffeur  then  left  in 
the  vehicle,  either  to  take  it  to  the  corporation's  office  or 
to  go  for  his  lunch,  and  on  his  way  ran  over  the  plaintiff's 
intestate.  Held  that  the  express  company  was  not  liable, 
as  the  chauffeur  was  not  its  servant  at  the  time  of  the  acci- 
dent.     Bohan    v.    Metropolitan    Express    Company,    107 

N.  Y.  S.  530. 

In  an  action  against  the  owner  of  an  automobile  to  re- 
cover damages  for  personal  injuries,  the  result  of  a  collis- 
ion between  the  automobile  and  the  plaintiff,  the  owner 


250  THE  LAW  OF  AUTOMOBILES. 

showed  that  he  had  delivered  it  to  the  person  who  was 
driving  it  at  the  time  of  the  accident,  pursuant  to  an  agree- 
ment, by  the  terms  of  which  the  latter  was  to  use  the 
machine  for  the  purpose  of  hire  and  pay  the  purchase  price 
to  the  owner  out  of  the  proceeds  derived  from  its  use.  The 
driver  was  shown  not  to  be  in  the  employ  or  in  any  way 
under  the  control  of  the  owner  and  under  these  facts  it  was 
held  that,  even  if  the  driver  were  guilty  of  negligence,  his 
negligence  was  not  imputable  to  the  owner.  The  owner, 
consequently,  was  not  held  liable  in  damages.  Braverman 
v.  Hart,  105  N.  Y.  Supp,  107. 

An  owner  of  an  automobile  is  not  liable  for  an  injury 
caused  by  the  negligent  driving  of  a  borrower,  if  the 
machine  was  not  used  at  the  time  in  the  owner's  business. 
Doran  v.  Thompsen,  66  Ht.  Rep.  897 ;  Beaverman  v.  Hart, 
105  N.  Y.  S.  107. 

In  Parsons  v.  Wisner,  113  N.  Y.  Supp.  922,  it  was  held 
that  the  defendant  was  not  liable  for  injuries  to  the  plain- 
tiff in  a  collision  with  the  defendant's  automobile,  while  the 
machine  was  being  operated  by  a  chauffeur  employed  by 
the  defendant's  brother,  who  had  control  of  the  automobile 
as  bailee.  Citing  Cunningham  v.  Castle,  127  App.  Div. 
580;  III  N.  Y.  Supp.  1057. 

A  motor  car,  after  having  been  repaired  by  the  defend- 
ants, was  sent  back  to  the  owner  under  the  charge  of  a 
driver  who  was  in  the  employ  of  the  defendants.  The 
driver  received  instructions  from  the  defendants  not  to 
give  up  the  driving  to  any  one.  At  one  stage  of  the  jour- 
ney, a  man  not  in  the  employ  of  the  defendants  accom- 
panied the  driver,  who,  hearing  a  noise  at  the  back  of  the 
car,  entrusted  the  driving  to  his  companion  while  he  him- 
self went  to  the  back  of  the  car  to  ascertain  the  cause  of  the 
noise.  His  companion,  while  driving  negligently  drove  the 
car  against  the  plaintiff's  van.      In  an  action  to   recover 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.     251 

damages  in  the  County  Court,  the  jury  found  a  verdict  for 
the  plaintiff.  The  Divisional  Court  held  that,  as  there  was 
no  necessity  for  keeping  the  car  going  while  the  driver 
examined  the  machinery,  and  therefore  for  entrusting  the 
driving  to  the  driver's  companion,  the  defendants  were  not 
liable  for  the  negligence  of  the  latter.  An  appeal  in  this 
case  was  taken,  but  the  Appellate  Court  did  not  consider 
the  question  raised,  since  the  correct  procedure  for  its 
review  was  not  taken.  Upon  appeal,  it  was  held  that  as 
the  question  of  the  necessity  for  trusting  the  car  to  a  third 
person  was  not  raised  in  the  County  Court  nor  by  the  notice 
of  appeal  to  the  Divisional  Court,  it  could  not  be  raised 
afterwards  and  the  verdict  and  judgment  for  the  plaintiff 
must  stand.  Decision  of  the  Divisional  Court  (22  The 
Times  L.  R.  556)  reversed.  Harris  v.  Fiat  Motors 
(Limited)   (C.  A.) 

Where  the  owner  or  person  in  possession  of  an  automo- 
bile merely  permits  another  to  use  it,  the  latter  does  not 
thereby  become  the  agent  or  servant  of  the  fonner,  so  as 
to  charge  the  one  with  the  other's  negligence.  Lewis  v. 
Amorous,  59  S.  E.  Rep.  338. 

§  10.  Authority  to  purchase  supplies. 

A  case  of  some  interest  occurred  in  the  State  of  New 
York  where  the  chauffeur  purchased  supplies  for  an 
automobile,  and  it  was  held  that  a  chauffeur  in  charge  of 
a  motor  vehicle  has  no  authority,  either  apparent  or  im- 
plied, to  order  permanent  repairs  thereto  on  the  credit  of 
his  employer,  or  any  other  repairs,  except  such  as  are  neces- 
sary to  enable  him  to  continue  his  journey.  (See  Gage  v. 
Callahan,  109  N.  Y.  Supp.  844.) 

It  would  seem  that  supplies  purchased  by  a  chauffeur 
which  are  reasonably  necessary  for  the  purpose  of  continu- 


252  THE  LAW  OF  AUTOMOBILES. 

ing  his  journey,  which  in  itself  is  authorized,  may  be  pur- 
chased by  him,  and  his  employer  will  be  compelled  to  pay 
the  bills.  The  theory  of  this  rule  is  that  the  chauffeur 
having  been  ordered  to  proceed  to  a  certain  place,  he 
necessarily  must  have  authority  to  buy  the  things  neces- 
sary to  carry  him  there,  such,  for  instance,  as  gasoline,  oil 
and  probably  parts  of  the  car  which  have  become  lost  or 
broken.  But  there  is  no  authority  to  make  any  permanent 
repairs  to  the  car.  Most  certainly  a  chauffeur  would  not 
have  authority  to  have  a  car  repainted,  unless  he  w^ere  ex- 
pressly given  the  power  to  do  so,  or  to  have  new  shoes  put 
on  the  car.  However,  the  chauffeur's  authority  in  these 
respects  might  be  presumed  by  law,  where,  according  to 
the  custom  of  dealing  between  the  supply  man  and  the 
owner,  the  chauffeur  has  been  given  full  authority  to  order 
whatever  is  necessary  for  the  car,  as  though  he  were  the 
owner.  In  such  a  case  custom  would  broaden  the  authority 
of  the  agent. 

The  tendency  of  the  court  decisions  is  to  hold  that  the 
owner  is  not  responsible  for  the  acts  of  his  chauffeur,  unless 
it  is  alleged  and  proved  that  at  the  time  of  the  commission 
of  an  injury  the  chauffeur  was  acting  for  the  master. 

§  11.  Pleading. 

In  an  action  for  negligence  of  the  defendant's  chauffeur 
in  driving  an  automobile,  a  statement  is  sufficient  wliich 
avers  that  the  approach  of  the  automobile  frightened  the 
plaintiff's  horses,  which  fact  the  chauffeur  must  have  seen, 
yet  lie  continued  to  drive  toward  the  horses  at  a  high  rate 
of  speed,  causing  them  to  break  from  the  plaintiff's  control 
and  run  away.  Rupp  v.  Snyder  Automobile  Company,  21 
York  (Pa.)  177. 

In  an  action  to  recover  for  injuries  caused  by  the  defen- 


CHAUFFEUR'S  AUTHORITY  TO  BIND  HIS  EMPLOYER.    253 

dant's  automobile  while  operated  by  a  servant,  a  motion, 
before  answer,  for  a  bill  of  particulars  to  enable  the  defen- 
dant to  answer,  will  be  denied,  where  the  defendant  denies 
all  knowledge  as  to  the  matters  alleged  in  the  complaint. 
Bailey  v.  Mayer,  107  N.  Y.  S.  624,  56  Misc.  Rep.  331. 


CHAPTER  XXI. 
THE  MANUFACTURER  OF  AUTOMOBILES. 

Sec.  1.  General  considerations. 

2.  The  manufacturer's  status. 

3.  Quality  of  cars  already  turned  out. 

4.  American  tendencies. 

5.  Duties  and  responsibilities  of  manufacturer. 

6.  Equipment. 

7.  Engine  not  a  brake. 

8.  Public  automobiles. 

9.  Registration  of  manufacturers. 
10.  Conclusion. 

§  1.  General  considerations. 

Among  the  many  reported  judicial  decisions  concerning 
motoring-  and  the  motor  car,  no  reported  ca.se  in  reference 
to  the  manufacturer's  part  played  in  automobiling  has  as 
yet  appeared,  though  circumstances  have  happened  pointing 
in  a  direction  to  what  reasonably  might  be  expected  from 
litigation  in  the  near  future.  No  per.son  is  more  intimately 
connected  with  motoring,  and  of  so  vital  importance  in  quali- 
fications, as  the  manufacturer.  The  position  of  the  chauf- 
feur, in  regard  to  his  prudence,  intelligence,  and  careful- 
ness, is  somewhat  insignificant  compared  with  the  great  re- 
sponsibility resting  upon  the  shoulders  of  the  automobile 
constructor,  and  yet  the  latter  has  not  been  deemed  an  indi- 
vidual of  sufficient  police  regulatory  account  to  be  con- 
sidered a  favorable  subject  of  legislative  control  in  regard 
to  the  safe  manufacture  of  safe  machines.     The  thousands 

[254] 


THE  MANUFACTURER  OF  AUTOMOBILES.  255 

of  automobiles  which  are  being  turned  out  every  year,  and 
the  hundreds  of  new  incorporated  companies  which  are 
being  formed  for  the  purpose  of  manufacturing  motor 
vehicles,  necessarily  will  be  felt  in  occupying  the  attention 
of  the  courts.  We  have  only  to  wait  for  the  decisions  to 
come — they  are  bound  to  arrive. 

§  2.  The  manufacturer's  status. 

The  manufacturer  of  automobiles  occupies  a  position  of 
serious  responsibility,  not  only  to  his  customer  and  the 
users  of  his  car  but  to  the  public.  He  is  providing  a  power- 
ful carrying  machine  to  run  on  the  public  streets  and  high- 
ways in  the  midst  of  traffic.  This  he  knows  and  fully 
realizes.  His  position  is  one  of  trust  and  confidence.  On 
him  rely  his  customers  and  others  for  the  safe  construc- 
tion of  machines  in  workmanship  and  material. 

§  3.  duality  of  cars  already  turned  out. 

The  cars  turned  out  thus  far  have  proven  no  defects  in 
construction  and  no  use  of  inferior  materials  so  far  as  to 
render  them  dangerous  for  their  contemplated  use.  The 
manufacturers  have  established  a  feeling  of  safety  and 
reliance  in  the  people.  But  have  we  the  assurance  of  a 
continuation  of  this  feeling  of  confidence? 

§  4.  American  tendencies. 

From  our  American  experience  regretfully  we  have  to 
say  that  our  industry  is  apt  to  be  contaminated  with  adul- 
teration and  substitution.  We  know  that  the  cost  of  pro- 
duction is  sought  to  be  reduced  by  using  cheaper  labor  and 
inferior  materials.  This  reasonably  may  be  expected  in 
the  manufacture  of  automobiles  on  the  part  of  some  pro- 
ducers if  precautions  are  not  taken.    There  are,  and  will  be. 


256  THE  LAW  OF  AUTOMOBILES. 

of  course,  many  automobile  manufacturers  whose  products 
always  will  stand  for  the  best  and  safest  material  and  work- 
manship. The  very  cheap  machine  and  its  manufacturer, 
however,  will  need  our  serious  consideration. 

§  5.  Duties  and  responsibilities  of  manufactnrer. 

Speaking  generally,  what  are  the  duties  and  respon- 
sibilities of  the  automobile  manufacturer  in  putting  an  au- 
tomobile on  the  market  ?  It  must  be  conceded  that  a  safely 
constructed  motor  vehicle  is  not  of  itself  a  dangerous 
machine,  and  only  becomes  a  source  of  danger  to  the  oc- 
cupants through  faulty  construction  or  improvident  driv- 
ing. We  have  simply  the  case  of  a  manufacturer  placing 
on  the  market  for  sale  a  vehicle  of  somewhat  complicated 
machinery  of  high  speed  power  and  used  for  the  trans- 
portation of  persons.  What  is  the  law  governing  such  a 
manufacturer?  Since  no  cases  concerning  the  automobile 
and  dealing  with  the  subject  under  discussion  have  arisen 
for  determination  by  the  courts,  we  are  compelled  to  reason 
from  a  consideration  of  cases  decided  in  reference  to  the 
manufacure  and  sale  of  machines  and  articles  generally 
other  than  vehicles.  Without  reviewing  the  decisions 
concerning  the  manufacturer's  liability  for  the  sale  of 
defective  machinery,  it  would  be  impossible  to  say  more 
than  that  the  manufacturer  of  an  automobile  impliedly 
warrants  to  purchasers  that  the  vehicle  is  reasonably  fit 
and  safe  for  its  contemplated  use.  Any  negligence  on  the 
part  of  the  manufacturer  or  his  servants  in  constructing 
the  automobile,  or  in  the  use  of  improper  materials,  sub- 
jects the  manufacturer  to  liability  in  damages  for  an  injury 
received  by  the  party  purchasing  the  machine  who  is  in- 
jured while  exercising  due  care.  There  are  many  other 
questions  which  suggest  themselves  from  a  consideration 
of   the    automobile   manufacturer's   position,    questions   of 


THE  MANUFACTURER  OF  AUTOMOBILES.  257 

importance  and  some  little  difficulty,  but  for  the  present 
the  suggestion  that  there  is  serious  responsibility  resting 
upon  the  manufacturer  probably  is  sufficient.  Sir  Fred- 
erick Pollock  says  that  where  the  builder  of  a  carriage,  or 
the  maker  of  a  machine,  has  delivered  it  out  of  his  own 
possession  and  control  to  a  purchaser,  he  is  under  no  duty 
to  persons  using  it  as  to  its  safe  condition,  unless  the  thing 
was  in  itself  of  a  noxious  or  dangerous  kind,  or,  it  seems, 
unless  he  had  actual  knowledge  of  its  being  in  such  a  state 
as  would  amount  to  a  concealed  danger  to  persons  using  it 
in  an  ordinary  manner  and  with  ordinary  care.^ 

Automobile  engineering  has  its  legal  aspect.  If  anyone 
doubts  the  truth  of  this  assertion  he  has  only  to  listen  to 
the  complaints  of  purchasers  of  pleasure  cars  who  have 
been  either  disappointed  or  defrauded,  or  of  those  who 
have  bought  commercial  vehicles  under  promises  and 
representations  which  were  and  could  not  be  carried  out 
Take,  for  instance,  the  case  of  a  car  traveling  along  the 
road  at  a  fair  rate  of  speed,  when  suddenly  without  warn- 
ing it  shoots  off  the  highway  over  a  declivity.  The  steering 
gear  broke  or  a  knuckle  cracked  perhaps;  serious  injury  is 
done,  but  who  is  to  blame  ?  This  is  not  a  case  of  overspeed- 
ing,  nor  of  driving  over  a  dangerous  road,  but  merely  of 
using  an  automobile  in  the  ordinary  way.  No  one  is  to 
blame  for  the  accident  except  the  manufacturer.  He  can- 
not excuse  himself  on  the  ground  that  the  person  who  sup- 
plied the  steel  which  went  into  the  construction  of  the  au- 
tomobile is  to  blame ;  neither  is  he  exempt  from  responsibil- 
ity because  his  employees  did  not  exercise  a  high  degree 
of  care  in  the  manufacture  of  the  parts  of  the  vehicle.    The 


1.  See  Pollock  on  Torts,  p.  B'iz.  See  also  Winterbottom  v.  Wright, 
10  M.  &  W.  109;  Collis  v.  Sheldon,  (1868)  L.  R.  3  C.  P.  495,  37 
N.  J.  C.  P.  233;  Losee  v.  Clute,  51  N.  Y.  494. 

17 


25S  THE  LAW  OF  AUTOMOBILES. 

manufacturer  is  responsible  for  the  misdoings  of  his  work- 
men, and  it  is  his  duty  to  see  to  it  that  his  product  is  not 
defective  when  it  leaves  the  factory.  This  is  an  active  and 
positive  duty  requiring  much  care  and  pains.  There  are 
other  duties  resting  upon  the  shoulders  of  automobile 
manufacturers,  but  before  considering  them  we  will  ascer- 
tain the  legal  status  of  those  who  are  producing  power 
vehicles  to  run  upon  our  public  thoroughfares. 

As  a  warning,  let  it  be  said  at  the  outset  that  automobile 
manufacturers  should  be  far-sighted  enough  to  see  that 
unless  cars  are  built  with  a  high  factor  of  safety  there  will 
inevitably  come  unwelcome  legislation.  Too  little  attention 
has  been  paid  to  the  element  of  safety  in  the  manufacture 
and  construction  of  motor  cars,  the  sole  aim  having  been  to 
produce  a  vehicle  of  high  power  and  speed,  which  is  neces- 
sarily antagonistic  to  safe  automobiling.  Unless  machines 
are  manufactured  with  a  view  to  making  legislation  un- 
necessary it  will  be  found  tliat  laws  will  be  passed  which 
will  require  the  manufacturer  to  turn  out  an  absolutely 
safe  product.  Then,  again,  we  may  also  expect  limitations 
upon  speed  capability,  such,  for  example,  as  limiting  the 
gearing. 

The  status  of  the  automobile  manufacturer  in  relation 
to  those  who  purchase  cars  from  him  and  the  public  involves 
a  confidential  relation.  Trust  and  confidence  is  reposed  in 
one  who  produces  an  automobile.  He  is  relied  upon  to 
furnish  a  safe  vehicle,  one  that  will  not  injure  those  who 
ride  in  it  under  under  ordinary  use.  The  manufacturer 
knows  what  kind  of  a  product  he  is  turning  out.  He  is 
aware  of  the  materials  and  labor  which  enter  into  its  con- 
struction. It  is  within  his  power  to  substitute  an  inferior 
material,  which  can  be  covered  up  with  paint.  He  has 
control  over  the  quality  of  the  labor  he  employs.    The  pur- 


THE  MANUFACTURER  OF  AUTOMOBILES.  259 

chaser  and  the  unsuspecting  pubHc  ordinarily  are  not  tech- 
nically versed  in  automobile  construction.  Those  who  buy 
machines  are  business  men,  doctors,  lawyers,  etc.,  and  are 
compelled  to  rely  wholly  upon  the  word  and  honor  of  the 
one  who  constructs  the  machine.  The  relation  is  indeed 
one  of  trust  and  confidence.  This  relation  is  looked  upon 
by  the  law  with  a  great  deal  of  jealousy,  and  protection  is 
afforded  the  party  who  places  his  confidence  in  another. 
All  contracts  between  persons  holding  trust  relations  are 
most  strongly  construed  in  favor  of  the  fiduciary.  The 
doctrine  of  caveat  emptor  does  not  apply  in  the  sale  and 
purchase  of  an  automobile,  as  a  general  rule. 

To  gain  the  disfavor  of  the  judiciary  is  to  lose  one's 
standing  before  the  courts.  To  reap  the  disfavor  of  the 
public  is  to  lose  business  and  bring  about  financial  wreck. 
Are  the  manufacturers  of  automobiles  in  the  United  States 
bringing  about  such  a  condition?  There  is  a  tendency 
toward  it  at  least.  For  instance,  some  of  those  who  pur- 
chased commercial  cars,  being  led  to  believe  that  the  cars 
would  stand  up  and  do  the  required  work,  now  realize,  to 
their  sorrow,  that  their  money  has  been  wasted.  All  the 
promises  and  representations  made  by  the  manufacturer 
are  of  no  avail,  since  in  many  cases  it  would  be  useless  to 
bring  legal  proceedings  for  a  breach  of  warranty  or  mis- 
representation, because  of  the  insolvency  of  the  producer. 
The  result  will  be  that  when  a  reliable  manufacturer  does 
come  forward  with  a  good  car  those  who  have  been  here- 
tofore bitten  will  not  believe  the  honest  man  who  has  an 
honest  product.  All  manufacturers  will  be  classed  alike 
by  those  who  have  suffered  at  the  hands  of  one  or  two. 
The  various  schemes  and  devices  which  have  been  resorted 
to  by  some  manufacturers  in  order  to  sell  their  cars  will 
act  like  a  boomerang,  and  the  comeback  will  be  experienced 


2(;q  the  law  of  automobiles. 

not  only  bv  the  wrongdoers  but  by  those  who  have  exer- 
cised legal  and  honorable  conduct.^ 


2.  Trade  marks. — With  the  great  variety  of  automobile  supplies 
and  accessories  continually  being  placed  upon  the  market  and  sold 
under  various  trade  names,  it  is  not  to  be  wondered  at  that  the  trade 
marks  under  which  certain  supplies  and  accessories  are  sold  should 
be  infringed.  An  intentional  infringement  of  this  character  certainly 
cannot  be  tolerated  for  an  instant.  There  are  instances,  however, 
where  a  party  or  a  concern  may  adopt  a  trade  name  or  trade  mark 
in  ignorance  of  the  fact  that  another  already  uses  a  similar  trade 
name  or  mark.  Of  course,  under  such  circumstances  the  subsequent 
use  of  the  trade  name  is  illegal,  and  an  injunction  may  be  procured 
to  stop  it.  The  public  certainly  have  a  right  to  fair  dealing,  and 
the  conduct  of  a  business  in  such  a  manner  that  there  is  an  express 
or  implied  representation  that  the  goods  or  business  of  one  man  are 
the  goods  or  business  of  another  is  an  illegal  depredation  not  only 
upon  the  public  but  upon  the  dealer. 

In  order  to  obtain  the  advantage  of  one's  good  will  and  reputation 
in  the  conduct  of  his  business,  and  the  qualities  of  the  article 
which  he  handles,  it  has  been  the  custom  for  a  long  time  to 
affix  to  the  goods  employed  in  the  particular  business  a  name  or 
some  particular  mark,  to  distinguish  these  goods  from  similar  goods 
produced  by  others  engaged  in  the  same  business.  These  distinguish- 
ing marks  are  called  trade  marks,  and  their  use  has  been  very 
general  in  all  countries  from  ancient  times. 

A  trade  mark  may  be  defined  as  a  name,  sign,  symbol  or  device 
which  is  applied  or  attrached  to  the  goods  offered  for  sale  in  the 
market,  so  as  to  distinguish  them  from  other  goods  sold  by  others. 
A  trade  mark  in  order  to  be  valid  must  be  distinctive.  It  also  must 
have  some  actual  physical  connection  with  the  goods.  It  is  sufficient, 
however,  if  the  mark  is  affixed  either  upon  the  goods  themselves  or 
upon  a  box  or  wrapper  containing  them,  or  in  some  other  way 
physically  attrached  to  the  article.  An  unlawful  business  cannot 
secure  a  valid  trade  mark,  and  a  trade  mark  must  not  be  in  itself 
illegal  or  immoral  or  against  public  policy.  No  sign  or  symbol  can 
be  used  as  a  valid  trade  mark  which  from  the  fact  conveyed  by  its 
primary  meaning  others  may  employ  with  equal  truth  and  with  equal 
rights  for  the  same  purposes.  Arbitrary  and  fanciful  words  may 
constitute  a  valid  technical  trade  mark,  such,  for  example,  as  the 
word  "star,"  as  applied  to  shirts,  and  "Ideal,"  as  applied  to 
fountain  pens,  etc. 

Newly  coined  and  Invented  words  may  also  constitute  valid  trade 


THE  MANUFACTURER  OF  AUTOMOBILES.  261 

In  the  construction  of  warranties  and  representations 
made  by  automobile  manufacturers  the  courts  of  this 
country  will  interpret  such  agreements  in  favor  of  the 
public  wherever  it  is  possible.  An  example  of  this  recently 
occurred  in  Missouri,  where  the  Supreme  Court  held  that 
where  a  manufacturer  sold  an  automobile  to  a  woman,  stat- 
ing that  it  could  be  run  by  her  without  manual  labor,  she 
had  the  right  to  return  the  automobile  and  to  recover  the 
money  paid  for  it.  It  has  also  been  held  that  where  an 
automobile  is  sold,  and  it  is  stated  that  the  machine  will  be 
satisfactory  to  the  purchaser,  the  purchaser  may  return  the 
vehicle  and  recover  the  price  if  it  is  not  satisfactory  to  him, 
notwithstanding  the  fact  that  his  dissatisfaction  is  based 
upon  unreasonable  grounds.  These  decisions  simply  illus- 
trate the  attitude  which  the  courts  are  taking. 


marks.  These  are  frequently  found  in  the  automobile  trade,  and  may- 
be protected  against  infringement. 

The  color  of  an  article  or  label,  or  its  form  or  size,  can  rarely  if 
ever  be  protected  as  a  technical  trade  mark.  Neither  can  the  name 
of  the  substance  out  of  which  it  is  manufactured  be  protected. 

Words  of  quality,  character,  grade,  excellence,  popularity,  processes 
of  manufacture,  purpose  of  use,  ingredients,  geographical  terms,  are 
usually  incapable  of  being  protected,  unless  there  is  fraud  upon  the 
public  shown  in  their  use. 

Trade  marks  and  trade  names  are  acquired  by  mere  adoption  and 
use.  Statutory  provisions  for  the  registration  of  trade  marks,  as  a 
general  rule,  apply  only  to  words,  marks  or  symbols  which  have  al- 
ready become  trade  marks  by  adoption  and  use.  The  purpose  of 
registry  is  simply  to  facilitate  the  remedy.  Registration  confers 
no  new  rights.  The  exclusive  right  to  the  trade  name  belongs 
to  the  one  who  was  first  to  appropriate  and  use  it  in  connection  with 
the  goods  in  question,  and  not  to  the  inventor  or  the  one  who  first 
suggested  it.  The  necessity  of  use  is  vital.  The  popular  misap- 
prehension that  a  trade  mark  must  be  registered  in  order  to  be 
protected  should  be  corrected.  Those  who  first  use  a  trade  mark 
may  enjoin  others  who  seek  to  use  a  similar  device,  symbol  or  mark, 
and  who  attempt  to  trade  on  the  good  name  and  good  will  of  another's 
business. 


2G2  THE  LAW  OF  AUTOMOBILES. 

§  6-  Equipment- 
It  is  the  duty  of  the  manufacturer  of  automobiles  to 
place  reliable  and  safe  equipment  on  their  machines.  This 
duty  is  not  only  statutory  but  one  imposed  by  the  common 
law.  Over  a  hundred  years  ago  the  common  law  required 
all  travelers  on  public  highways  to  have  "  good  tackle," 
which  term  included  shafts,  harnesses,  lamps,  wheels — in 
fact  almost  everything  connected  with  a  vehicle  which 
might  get  out  of  order  by  use.  Many  of  the  automobile 
laws  of  the  United  States  require  that  machines  must  be 
equipped  with  lamps  and  good  brakes.  Some  of  the  laws  re- 
quire mufflers  and  locking  devices.  Very  little  complaint  can 
be  made  in  regard  to  the  quality  of  the  lamps  which  are  car- 
ried, except  that  searchlights  should  be  prohibited  in  cities, 
but  it  is  not  so  much  the  fault  of  the  manufacturer  if  im- 
proper lamps  are  used  as  it  is  where  a  car  is  originally  sup- 
plied with  brakes  that  are  not  efficient.  Many  instances  have 
occurred  where  automobiles  have  either  run  backward  or 
forward  down  a  steep  hill  because  the  brakes  refused  to 
work.  It  may  be  that  in  some  of  the  cases  the  refusal  of 
the  brakes  to  do  their  duty  was  due  to  lack  of  attention, 
but  it  would  seem  from  the  number  of  accidents  due  to 
trouble  with  brakes  that  a  manufacturer  of  automobiles 
should  provide  a  positive  and  unfailing  stopping  contri- 
vance which  cannot  get  out  of  order  by  the  ordinary  use  of 
the  machine,  and  which  is  to  be  used  only  in  emergencies. 
A  manufacturer  who  makes  such  a  device  a  feature  of  his 
car  will  add  to  it  an  element  of  safety  which  will  make  his 
product  marketable  beyond  other  cars  which  do  not  possess 
a  similar  device.  Moreover,  those  manufacturers  who  fail 
to  supply  this  urgent  necessity  may  find  themselves  involved 
in  litigation  sooner  or  later. 

Tires  are  a  part  of  the  equipment  of  an  automobile,  and 
although  the  manufacturers  do  not  do  more  than  furnish 


THE  MANUFACTURER  OF  AUTOMOBILES.  263 

tires  made  by  other  concerns,  yet  it  is  their  duty  to  see  that 
proper  tires  are  placed  upon  cars  which  they  turn  out.  It  is 
also  their  duty  to  see  that  the  tires  are  safely  attached  to 
the  wheels.  This  duty  is  owed  to  purchasers  of  their  vehi- 
cles and  also  to  the  public. 

There  are  some  negative  obligations  on  the  part  of  manu- 
facturers; for  example,  in  some  of  the  states  excessive 
noise  and  odors  must  not  be  permiteed.  Automobiles  must 
be  so  constructed  as  to  prevent  these  annoyances. 

"  Every  motor  vehicle  while  in  use  on  a  public  highway 
shall  be  provided  with  *  good  and  efficient  brakes,'  and  also 
with  '  a  suitable  bell,  horn  or  other  signal,'  "  etc.,  is  the 
language  of  the  New  York  motor  vehicle  law.  Similar 
provisions  exist  in  almost  all  the  other  states.  Just  exactly 
what  constitutes  "  good  and  efficient  brakes  "  and  a  "  suit- 
able bell,  horn  or  other  signal  "  may  be  matters  concerning 
which  various  opinions  may  be  expressed.  The  automobile 
laws  demand,  under  penalty  of  criminal  prosecution,  that 
motor  vehicles  which  are  not  safely  equipped  in  respect  to 
the  particulars  mentioned  shall  not  be  used  on  the  public 
highways.  The  words  "  good  and  efficient  "  and  "  suit- 
able "  must  be  understood  as  pertaining  to  safety,  and 
whether  the  equipment  of  an  automobile  complies  with  the 
law  constitutes  ordinarily  a  question  of  fact  and  not  of 
law.  If  the  equipment  is  as  a  matter  of  fact  "good  and 
efficient,"  then  the  law  is  satisfied;  but  who  is  to  say 
whether  brakes  are  good  and  efficient  or  whether  the  signal 
device  is  suitable?  Primarily  the  manufacturer  of  the  au- 
tomobile determines  the  quality  and  kinds  of  brakes  used, 
and  the  manufacturer  of  horns  decides  as  to  the  "  suit- 
ability "  of  the  warning  device;  but  the  prohibition  of  the 
law  is  not  directed  against  the  manufacturer.  The  user 
or  driver  of  the  automobile  is  forbidden  to  operate  the 


264 


THE  LAW  OF  AUTOMOBILES. 


machine  on  the  pubhc  highway  unless  it  Is  properly  equip- 
ped. He  is  responsible.  He  must  see  to  it  that  his  brakes 
are  "  good  and  efficient,"  and  that  they  remain  so. 

Although  there  may  be  some  uncertainty  concerning 
what  constitutes  *'  good  and  efficient  "  equipment  or  "  suit- 
able "  warning  devices,  there  can  be  no  mistake  in  regard 
to  the  number  of  efficient  brakes  required.  The  law  says 
'*  brakes."  This  means  more  than  one  device  for  stopping 
the  machine — not  one  good  brake  and  one  that  is  out  of 
order.  There  also  can  be  no  question  in  regard  to  the 
necessity  of  carrying  some  kind  of  a  warning  signal;  but 
the  automobilist  is  not  compelled  to  confine  himself  to  using 
a  horn  merely  because  the  horn  has  been  generally  adopted. 
A  bell  or  whistle  may  be  lawfully  used.  In  England  it  is 
provided  in  the  Motor  Car  (Use  and  Construction)  Order 
of  1904,  Article  IV,  Section  5,  that  drivers  must,  when- 
ever necessary,  by  sounding  the  bell  or  other  instrument 
required  by  the  law,  "  give  audible  and  sufficient  warning 
of  the  approach  or  position  of  the  motor  car."  It  is  held 
that  ideas  may  differ  considerably  as  to  what  warning  is 
"  sufficient." 

The  provision  of  the  Pennsylvania  automobile  act  re- 
quiring every  operator  of  an  automobile  to  sound  the  gong 
or  other  alarm  when  approaching  a  street  or  road  crossing 
should  not  be  overlooked  in  considering  motor  vehicle 
equipment  and  the  use  thereof.  When  and  under  what 
circumstances  the  alarm  should  be  sounded  are  matters  of 
sound  judgment,  and  it  seems  unreasonable  to  require  an 
alarm  to  be  given  upon  approaching  every  country  cross- 
road if  the  driver  can  see  all  around  him  and  there  is  no 
traffic  on  the  highway.  Much  abuse  has  been  made  of  this 
provision  of  the  law  by  constables  arresting  careful  auto- 
mobilists  who  were  unaware  of  the  legal  requirement. 


THE  MANUFACTURER  OF  AUTOMOBILES.  265 

§  7-  Engine  not  a  brake. 

Most  of  the  state  automobile  laws  require  that  each 
motor  vehicle  muct  be  equipped  with  good  and  efficient 
brakes.  In  one  or  two  of  the  laws  it  is  provided  that  there 
shall  be  more  than  one  brake.  In  England  the  question  has 
arisen  if  the  engine,  which  is  frequently  used  as  a  brake, 
complies  with  the  law,  provided  only  one  real  brake  is  on 
the  automobile.  It  has  been  held  that  the  engine,  under 
such  circumstances,  does  not  constitute  a  "  brake  "  within 
the  meaning  of  the  requirements.  Wilmott  v,  Southwell, 
L.  T.  Rep.,  Vol.  XXV,  No.  2,  p.  22,  Oct.  2-],  1908. 

§  8.  Public  automobiles. 

The  public  automobile  is  with  us,  and  its  use  by  the  public 
and  its  equipment  are  bound  to  be  matters  of  legislative 
study  sooner  or  later.  There  is  not  so  much  need  of  legis- 
lation concerning  sightseeing  automobiles  as  there  is  con- 
cerning the  more  speedy  vehicles  which  carry  passengers 
for  purposes  of  transit.  The  owners  of  these  latter  vehi- 
cles occupy  about  the  same  relation  to  the  traveling  public 
as  do  the  owners  of  a  street  railway  line. 

The  public  automobile  is  a  common  carrier,  and  as  such 
its  proprietors  are  bound  by  law  to  exercise  a  high  degree 
of  care  for  the  safety  of  their  passengers,  not  only  in  pro- 
viding a  safe  equipment  but  in  furnishing  a  competent  and 
careful  driver.  It  requires  a  higher  degree  of  intelligence 
and  knowledge  to  safely  operate  a  road  vehicle  than  to  act 
as  motorman  of  a  street  car ;  the  automobile  driver  may 
not  need  to  be  particularly  well-informed  concerning  the 
engine  and  driving  mechanism,  but  must  be  well  up  in  au- 
tomobile driving  and  road  management.  For  instance,  he 
must  know  how  to  avoid  skidding,  especially  if  he  is  in 
charge  of  a  double  deck  vehicle  carrying  a  considerable 
number  of  people  on  the  upper  deck.     A  vehicle  of  this 


2(36  THE  LAW  OF  AUTOMOBILES. 

character,  with  its  relatively  high  center  of  gravity,  is 
liable  to  capsize  if  in  skidding  it  strikes  a  curb  or  other 
obstruction  with  great  force.  One  disadvantage  to  the 
traveling  public  if  any  injury  should  be  done  by  a  public 
motor  vehicle  would  arise  from  the  fact  that  the  companies 
operating  such  services  are  usually  not  very  strongly 
financed,  and  it  might  be  difficult,  to  collect  any  substantial 
judgment  rendered  against  them. 

In  regard  to  the  equipment  of  these  vehicles,  this  should 
be  of  the  very  best.  It  should  be  made  a  misdemeanor  for 
a  transportation  company  to  operate  cars  without  system- 
atically inspecting  them  for  wear  and  breakage.  One  of 
these  cars  which  was  seen  recently  standing  in  New  York 
City  waiting  for  passengers  had  nothing  to  hold  the  road 
wheels  on  the  axles  except  a  large  washer  and  a  split  pin. 
A  machine  of  such  construction  should  not  be  allowed  to 
carry  passengers  in  public  service. 

§  9.  Registrations  of  manufactrirers. 

In  many  of  the  states  those  wno  manufacture  automo- 
biles, as  well  as  the  dealers,  are  required  to  register  with 
the  Secretary  of  State  or  some  other  officer,  and  obtain  a 
license  before  carrying  on  business.  After  having  ob- 
tained a  license  it  is  ordinarily  provided  that  cars  of  the 
manufacturer  which  are  not  used  personally  for  driving 
may  be  operated  on  the  public  highways  under  the  manu- 
facturer's number.  It  is  a  very  general  provision  that  the 
manufacturer  shall  register  one  of  each  type  of  car  pro- 
duced by  him,  and  that  he  can  procure  duplicate  registra- 
tion seals  and  tags.  Manufacturers'  registration  fees  vary 
from  $5  to  $20. 

Secret  financial  irresponsibility. — It  is  a  fraud  In  law  for  a 
person  or  a  corporation  to  represent  himself  or  itself  to  be  solvent 
and    financially    responsible    when    this    is    not    the    case.     For    a 


THE  MANUFACTURER  OF  AUTOMOBILES.  267 

§  10.  Conclusion. 

In  conclusion  it  may  be  said  that  no  one  is  more  vitally 
interested  in  the  success  of  the  automobile  than  the  manu- 

corporation  to  continue  making  large  contracts,  assuming  heavy 
responsibilities  and  assuming  guarantees,  when  the  agents  of  the 
company  know  that  there  is  no  reasonable  hope  of  being  able  to 
fulfill  the  obligations  of  the  corporation,  constitutes  deceit.  It 
has  long  been  the  settled  law  that  if  a  man  goes  into  the  market 
and  buys  goods  on  credit,  knowing  at  the  time  that  he  cannot  pay 
for  them,  and  with  no  reasonable  expectation  of  future  ability  to  pay 
for  the  goods,  such  a  transaction  constitutes  at  least  an  implied  fraud. 
There  is  nothing  which  the  law  detests  more  than  false  and 
fraudulent  representations,  and  it  makes  no  difference  whether  the 
representations  are  made  by  expressed  statements  of  facts  or  implied 
assertions.  A  fraud  may  consist  of  concealing  a  fact  when  it  is 
the  duty  under  the  circumstances  of  a  party  to  speak.  A  large 
majority  of  the  frauds  which  are  committed  in  business  consists  of 
concealment  of  the  financial  irresponsibility  of  manufacturers  or 
dealers  which  is  troubling  the  thinking  public. 

Why  is  it  that  generally  the  outside  world  does  not  hear  of  an 
impending  failure  until  the  moment  it  is  precipitated?  It  is  not 
because  the  financial  condition  of  the  concern  is  unknown  and  has 
suddenly  come  upon  the  officers  of  a  company  as  a  surprise.  Those 
in  control  of  the  affairs  of  a  corporation  know  the  financial  condition 
of  the  business.  Long  before  an  assignment  occurs  or  a  petition  in 
bankruptcy  is  filed  corporate  officers  know  when  a  failure  is 
inevitable,  and  to  continue  making  contracts  and  to  carry  on  business 
under  such  circumstances  constitute  as  much  a  representation  that 
the  concern  is  solvent  as  if  an  expressed  statement  is  made  to  that 
effect. 

There  are  several  kinds  of  frauds  recognized  by  the  law.  There 
is  first  an  untrue  statement  of  fact,  which  if  believed  by  another 
party  and  acted  upon  by  him  to  his  detriment  is  ground  for  an  action 
for  deceit.  There  is  also  an  implied  fraud,  which  the  law  raises  from 
the  facts  and  circumstances  of  the  dealing  between  parties,  as,  for 
example,  where  one  person  takes  undue  advantage  of  another  when 
a  fiduciary  relation  exists  between  the  two.  A  constructive  fraud 
is  a  fraud  of  this  nature,  though  there  is  some  distinction  between 
an  implied  and  a  constructive  fraud.  For  a  manufacturer  to  carry 
on  business  while  financially  irresponsible,  knowing  that  there  Is  no 
reasonable  chance  of  fulfilling  contracts  and  obligations,  and  taking 
advantage  of  the  public  ignorance  of  the  real  state  of  affairs,  con- 
stitutes a  fraud  in  law. 


268  THE  LAW  OF  AUTOMOBILES. 

facturer.  No  one  can  be  more  interested  in  sane  automo- 
biling,  and  in  the  successful  elimination,  by  legislation  or 
otherwise,  of  the  grievous  conditions  which  now  exist, 
notably  as  to  speeding  and  racing  on  the  public  highways 
and  unsafe  construction  of  machines. 


CHAPTER  XXII. 
TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE. 

Sec,  1.  Introductory. 

2.  Historical. 

3.  Definitions. 

4.  No  exclusive  right  to  use  the  word  "taxicab." 

5.  The  taxicab  is  a  hackney  coach. 

6.  Right  to  conduct  taxicab  service. 

7.  Municipal  regulations. 

8.  When  city  may  not  demand  license  fees. 

9.  Rights  and  liabilities  of  proprietors. 

10.  Articles  left  in  taxicabs. 

11.  Disputes  over  fares. 

12.  Legal  rates  of  fare. 

13.  Duty  to  carry  applicants. 

14.  Operation  of  vehicles. 

15.  Liability  of  passengers  for  negligence. 

16.  Foreign  chauffeurs. 

17.  Rules  and  regulations. 

18.  Regulation  of  taximeters. 

§  1.  Introductory. 

The  marked  increase  in  the  use  of  taxicabs  and  public 
automobiles  calls  attention  to  the  legal  relations  between 
the  owners  or  operators  of  these  vehicles  and  their  patrons 
or  the  public;  also  the  rights  and  liabilities  of  persons  and 
companies  furnishing  to  the  public  transportation  by  means 
of  motor  driven  carriages.  We  had  hacks  and  cabs  long 
before  the  automobile  appeared  on  the  public  hig'hways,  and 
inasmuch  as  the  mechanical  power  is  merely  a  substitute 
for  the  animal,  it  might  be  said  that  there  is  really  nothing 
new  to  be  stated  concerning  the  law  governing  those  who 

[269] 


270  THE  LAW  OF  AUTOMOBILES. 

operate  and  use  such  public  conveyances,  however,  there 
is  much  existing  statutory  and  common  law  to  be  applied, 
and  it  is  the  application  of  established  rules  of  law  that  is 
of  interest  when  considering  the  various  uses  of  the  motor 
vehicle. 

§  2.  Historical. 

A  taxicab  is  a  hackney  carriage.  The  system  of  hackney 
coaches,  standing  at  designated  places  in  the  streets  of  a 
city,  grew  out  of  the  necessity  of  meeting  the  public  demand 
for  means  of  transit  from  point  to  point.  This  gave  rise 
to  a  class  of  men  who  procured  one  or  more  vehicles,  ac- 
cording to  their  means,  and  plied  the  streets  for  hire.  It 
was  soon  found  necessary  to  place  these  men  under  special 
police  regulations,  and  to  assign  certain  places  in  the  streets 
where  they  might  stand  waiting  for  customers.  Such  regu- 
lations were  necessary  for  the  control  of  hackmen  and  for 
the  convenience  of  the  public.  Their  object  was  to  prevent 
the  hackmen  from  traveling  with  empty  vehicles,  in  search 
of  customers,  in  the  streets  otherwise  sufficiently  crowded, 
and  also  to  prevent  their  stopping  and  remaining  for  any 
considerable  time  at  inconvenient  places ;  but  the  great  ob- 
ject was  to  have  hacks  standing  at  various  points  where  the 
public  would  be  most  likely  to  want  them,  and  where  they 
would  cause  the  least  inconvenience  to  other  vehicles  or  in- 
jury to  the  surrounding  property.^ 

§  3-  Definitions. 

The  term  "  public  automobile,"  as  used  herein,  and  as 
construed  in  law,  means  an  automobile  that  is  engaged  in 
the  service  of  the  public  as  a  common  carrier;  not  one  that 
is  used  by  the  government  in  some  one  of  its  branches  or 

1.  Hlitorfcal.— See  Materson  v.  Short,  34  How.  Proc.   (N.  Y.)  481. 


TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE.        271 

departments,  but  a  motor  vehicle  which  carries  the  pubHc 
for  hire,  Hke  any  other  common  carrier.  The  term  includes 
taxicabs,  automobile  bus  or  stage  lines,  and  sightseeing  au- 
tomobiles. Besides  these,  there  are  a  number  of  automo- 
bile lines  that  make  a  business  of  transporting  freight  be- 
tween points  in  the  United  States.  We  will  endeavor  to 
cover  the  entire  field  from  a  legal  standpoint,  but  our  dis- 
cussion will  refer  principally  to  the  "  taxicab." 

§  4.  No  exclusive  right  to  use  the  word  "  taxicab." 

Let  it  be  said  at  the  outset  that  there  can  be  no  exclusive 
proprietary  right  in  the  use  of  the  word  "  taxicab,"  no  mat- 
ter who  coined  the  word,  as  has  been  claimed.  The  word 
"  taxicab  "  is  public  property ;  it  is  descriptive  of  a  chattel 
and  is  the  commonly  used  name  by  which  automobile  hacks 
possessing  fare  registering  machines  are  known  to  the 
public.  Any  person  or  corporation,  conducting  a  hacking 
business  and  using  taximeters  on  them,  possesses  the  right 
to  call  the  vehicles  "  taxicabs,"  and  advertise  the  service 
as  conducted  by  the  use  of  "  taxicabs."  The  fact  that  the 
word  has  been  registered  as  a  trademark  does  not  alter 
the  case.  With  as  much  reason  could  a  manufacturer  of 
automobile  trucks  call  his  vehicles  "  auto  trucks,"  and  claim 
exclusive  rights  to  the  use  of  the  abbreviated  word.^ 

§  5-  The  taxicab  is  a  hackney  coach. 

A  taxicab,  as  said  before,  constitutes  a  hackney  coach. 
(See  Gassenheimer  v.  District  of  Columbia,  26  App.  Cas., 


2.  Right  to  use  word  "  taxicab." — No  sign,  symbol,  or  form  of 
words  can  be  appropriated  as  a  valid  trademark  which,  from  the 
fact  conveyed  by  its  primary  meaning,  others  may  employ  with 
equal  truth  and  with  equal  right  for  the  same  purpose.  See  vol.  23 
Am.  &  Eng.  Encyc.  Law   (2d  ed.),  p.  359. 

See  also  the  chapter  in  this  book  concerning  trade  marks.. 


272  THE  LAW  OF  AUTOMOBILES. 

'557.)  A  hackney  coach  is  a  term  long  used  in  England, 
meaning  a  public  carriage  for  hire  which  stands  in  the 
streets  and  also  those  kept  for  hire  in  stables.  The  test 
in  determining  the  character  of  the  particular  vehicle 
engaged  in  transportation  is,  whether  the  carriage  is  held 
out  for  the  general  accommodation  of  the  public. 

Under  Section  316  of  the  ordinances  of  the  city  of  New 
York  it  is  provided  that  a  vehicle  kept  for  hire  shall  be 
deemed  a  public  hack,  and  a  vehicle  intended  to  seat  two 
persons  inside  shall  be  deemed  a  cab,  and  a  vehicle  intended 
to  seat  four  persons  inside  shall  be  deemed  a  coach ;  and 
the  term  "  hackman  "  shall  be  deemed  to  include  the  owner 
or  driver,  or  both.  This  ordinance  was  approved  Novem- 
ber 2,  1905,  before  the  present  taxicabs  came  into  use  in 
the  city  of  New  York.  It  has  been  assumed  that  the 
local  ordinance  covers  taxicabs  and  other  automobiles 
engaged  in  carrying  the  public,  because  the  definition  of  a 
public  hack  includes  any  vehicle  kept  for  hire.^ 


3.  Hackney  carriages  and  pnblic  conveyances. — In  England  it 
has  been  held  that  an  ordinary  omnibus  running  along  a  fixed  route 
Is  a  hackney  carriage,  within  the  meaning  of  statutes  and  ordi- 
nances (see  Hickman  v.  Birch,  24  Q.  B.  D.  172).  But  a  hackney 
coach  is  not  a  wagon,  according  to  decisions  in  California  and  Nevada 
(see  Quigley  v.  Gorham,  5  Cal.  418,  63  Amer.  Decisions,  139;  Edge- 
comb  V.  His  Creditors,  19  Nev.,  154).  It  has  also  been  held  in  the 
State  of  New  York  that  a  hotel  omnibus  conveying  guests  to  and 
from  a  station  free  of  charge  is  not  a  "public  conveyance."  (See 
City  of  Oswego  v.  Collins,  38  Hun.  (N.  Y.),  17.)  In  Allen  v.  Tun- 
bridge,  L.  R.  6,  C.  P.,  481,  it  was  held  that  a  brougham  the  owner 
of  which,  by  agreement  with  a  railway  company,  attended  the  com- 
pany's station  for  the  conveyance  of  passengers,  was  a  hackney  car- 
riage. 

In  the  class  of  common  carriers  of  passengers  are  Included  not 
only  railroads,  horse,  dummy,  electric  and  cable  street  railways,  and 
steamboat  companies,  but  proprietors  of  stage  coaches,  city  omnibus 
lines,  hackmen  and  ferrymen,  including  the  proprietors  of  taxicabs 
and   other  motor  vehicles   engaged   in   public   transportation.      (See 


TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE.         273 

§  6.  Right  to  conduct  taxicab  service. 

A  private  individual  or  a  corporation  possessing  the 
authority  to  do  so  may  establish  and  maintain  a  taxicab 
service  in  a  city  upon  complying  with  the  license  regulation. 
No  special  or  exclusive  franchise  is  necessary  or  obtainable 
under  ordinary  circumstances.  Of  course  the  motor  vehicle 
must  comply  with  the  general  automobile  law,  with  ref- 
erence to  the  registration  of  the  motor  cabs,  and  the  drivers 
who  operate  the  taxicabs  must,  if  required,  possess  the  nec- 
essary chauffeur's  or  driver's  license.  Where  several  hun- 
dred taxicabs  are  operated  by  a  company  or  individual,  and 
automobiles  are  required  to  be  registered  annually,  the 
registration  fees  necessary  to  be  paid  amount  to  a  con- 
siderable sum.  Under  the  present  motor  vehicle  law  of 
Pennsylvania  automobiles  need  not  be  registered,  and  only 
drivers  are  required  to  register  and  pay  a  fee.  Several 
thousand  dollars  a  year  might  in  some  instances  be  saved 
by  having  the  principal  offices  of  the  company  in  states 
possessing  laws  demanding  small  and  permanent  license  fees 
from  automobile  owners.  The  companies  then  may  go  into 
any  state  desired  under  the  non-resident  exemption  pro- 
visions of  the  automobile  laws. 

§  7.  Municipal  regulations. 

Since  the  taxicab  is  a  hackney  coach  or  a  vehicle  held 
out  for  public  hire,  it  is  subject  to  municipal  control,  com- 
pelling the  drivers  or  owners  to  become  licensed  to  engage 
in  the  business  which  they  are  carrying  on.  Under  the 
ordinances  of  the  city  of  New  York,  taxicabs  and  other 
vehicles  engaged  in  a  similar  employment  must  be  licensed 


5  Am.  &  Eng.  Encyc.  of  Law  (2d  Ed.),  184.)     The  taxicab  is  a  com- 
mon carrier,  and  because  it  is  a  common  carrier  there  are  important 
rights  and  liabilities  connected  with  its  operation. 
18 


274  THE  LAW  OF  AUTOMOBILES. 

by  the  owner,  and  the  fee  is  $2  per  vehicle  and  $1  for  the 
annual  renewal  of  each  license.  (See  Sec.  325,  Ordinances 
of  the  City  of  New  York).  The  drivers  must  also  become 
licensed  from  the  municipal  authorities  (see  Sec.  305).  The 
drivers  must  also  become  licensed  from  the  municipal  au- 
thorities (see  Sec.  305).  The  Board  of  Aldermen  of  the 
city  of  New  York  are  given  power  to  license  public  hack- 
men,  cabmen  and  drivers  under  Sec.  51  of  the  New  York 
Charter.  The  penalty  for  not  having  a  license  when  re- 
quired is  a  fine  of  $2  to  $25.  No  driver  of  a  taxicab  can 
obtain  a  license  unless  he  is  a  citizen,  or  has  declared  his 
intention  to  be  a  citizen.  (See  Sec.  307.)  The  following 
are  the  vehicle  license  fees  for  New  York  city  (see  Sec. 
308): 

Each  public  hack  coach $3.00 

Each   public   hack   cab 2.00 

Each  special  hack  coach 5.00 

Each  special  hack  cab •     3.00 

Municipal  corporations  may,  generally  speaking,  require 
those  engaged  in  the  hacking  business  to  become  licensed, 
and  the  courts  have  even  gone  so  far  as  to  hold  that  if 
hackmen  are  without  licenses,  no  recovery  can  be  had  for 
services  rendered.^ 


4.  Ferdon  v.  Cunningham,  20  How  Prac.  (N.  Y.)  154;  Best  v. 
Bauder,  29  How.  Prac.  (N.  Y.)  489;  Miller  v.  Burke,  6  Daly  (N.  Y.) 
171;    Atlantic  City  v.  Fousler,  56  Atl.  Rep.  119. 

Charter  powers  of  New  York  City.— Sec.  51  of  the  New  York 
charter  provides:  Subject  to  the  constitution  and  laws  of  the  State, 
the  board  of  aldermen  shall  have  power  to  provide  for  licensing 
.   .  .  the  business  of  public  hackmen." 

This  provision  of  the  New  York  Charter  was  enacted  years  ago 
before  automobiles  or  taxicabs  were  ever  thought  of,  and  whether 
the  general  phraseology  of  the  section  can  be  construed  to  Include 
the  automobile  is  a  question  which  may  be  subject  to  some  argu- 
ment.    According  to  the  District  of  Columbia  decision  hereinafter 


TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE.        275 

§  8-  When  city  may  not  demand  license  fees- 

A  city  cannot  impose  a  license  fee  upon  proprietors  and 
drivers  of  taxicabs  unless  taxicabs  are  fairly  included 
within  the  terms  of  the  ordinance.  For  example,  if  at  the 
time  the  ordinance  was  enacted  automobiles  were  not  in 
existence,  then  it  might  be  held  that  the  local  regulation 
could  not  have  been  intended  to  cover  these  vehicles.  A 
law  imposing  a  license  tax  will,  in  case  of  doubt,  be  con- 
strued most  strongly  against  the  Government  and  in  favor 
of  the  citizen.  (See  Washington  Electric  Vehicle  Trans- 
portation Co.  V.  District  of  Columbia,  19  App.  Cas. 
(D.  C),  462).  In  this  case  it  was  held  that  an  electric 
carriage  or  automobile,  although  a  vehicle,  does  not  belong 
to  the  class  or  classes  of  vehicles  made  the  subject  of  the 
license  tax  imposed  by  a  law  on  the  proprietors  of  "  hacks, 
cabs,  omnibuses  and  other  vehicles  for  the  transportation  of 

mentioned,  no  license  fees  can  be  imposed.  There  is,  however,  a 
more  serious  objection  to  the  licenses  demanded  from  taxicab  drivers 
and  proprietors.  These  drivers  are  already  licensed  and  taxed  by 
the  State  under  the  motor  vehicle  law,  and  it  is  extremely  doubtful 
If  municipalities  can  demand  further  licenses  and  fees.  Take  the 
case  of  the  taxicab  driver  for  instance.  He  must  be  licensed  under 
the  State  automobile  law  and  pay  a  license  fee,  which  is  an  oc- 
cupation tax,  a  tax  on  his  calling. 

Application  of  old  statutes. — It  is  upon  the  same  ground  that 
a  toll  bridge  company  cannot  charge  tolls  for  automobiles  unless 
the  charter  or  a  law  authorizes  it  to  do  so  (see  Mallory  v.  Saratoga 
Lake  Bridge  Co.,  53  Misc.  (N.  Y.),  446);  that  a  town  is  not  liable 
to  repair  its  highways  under  an  old  statute  providing  for  carriages, 
according  to  a  recent  Massachusetts  decision  (see  Doherty  v.  Town 
of  Ayer,  83  N.  E,  Rep.,  677),  and  one  is  not  obliged  to  run  ahead 
of  a  steam  automobile  to  give  warning,  which  is  required  by  an  old 
statute  of  New  York  concerning  steam  carriages.  May  we  not 
reasonably  ask  if  New  York  city  to-day  possesses  the  authority  to 
license  and  tax  taxicabs?     Sec.  51  of  the  New  York  Charter  provides: 

Subject  to  the  constitution  and  laws  of  the  State,  the  board  of 
aldermen  shall  have  power  to  provide  for  licensing  •  •  *  the  busi- 
ness of  public  hackmen. 


276  THE  LAW  OF  AUTOMOBILES. 

passengers  for  hire,"  not  having  been  known  and  in  use  at 
the  time  of  the  passage  of  the  act.  This  decision  is  in  ac- 
cordance with  the  trend  of  authority  on  the  question  of 
old  laws  by  the  use  of  some  general  word  or  term  not 
covering  the  automobile  or  other  form  of  vehicle  coming 
into  existence  or  used  subsequent  to  the  passage  of  the 
law.  As  said  in  the  District  of  Columbia  case :  The  terms, 
"  other  vehicles,"  were  intended  manifestly  to  embrace  only 
such  other  vehicles  as  were  ejiisdem  generis. 

§  9.  Eights  and  liabilities  of  proprietors. 

A  carrier  of  passengers  by  hackney  coaches  or  taxicabs 
is  liable  for  injuries  to  a  passenger  resulting  from  negli- 
gence of  the  driver.  In  the  absence  of  an  express  con- 
tract the  same  liability  exists  toward  a  passenger  carried 
gratuitously.  So  also  is  a  taxicab  proprietor  liable  for 
the  loss  of  or  damage  to  the  contents  of  a  trunk,  although 
tnmks  are  not  usually  carried  as  baggage.  Of  course  in 
the  case  of  personal  injuries  contributory  negligence  on 
the  part  of  the  person  injured  would  bar  a  recovery. 

§  10.  Articles  left  in  taxicabs. 

Under  the  municipal  ordinances  of  the  city  of  New 
York,  immediately  after  a  taxicab  becomes  vacant  it  is  made 
the  duty  of  the  driver  to  search  the  vehicle  for  any  articles 
that  might  be  left  by  the  last  occupant  of  the  cab.  If  any 
property  is  found  and  not  claimed  it  must  be  taken  to  the 
nearest  police  station  within  twenty-four  hours.  There  also 
must  be  a  written  notice  of  the  finding  of  the  property 
forwarded  to  the  Bureau  of  Licenses  at  the  City  Hall.  Per- 
sons using  taxicabs  have  the  right  to  depend  upon  these 
provisions  of  the  local  law  being  complied  with,  and  taxicab 
proprietors  are  liable  if  property  thus  left  behind  is  not 
accounted  for. 


TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE.        277 

§  11.  Disputes  over  fares. 

In  case  of  a  dispute  in  New  York  city  over  the  amount 
of  fare  to  be  paid,  the  passenger  is  entitled  to  fair  and 
gentlemanly  treatment  from  the  driver.  The  dispute  must 
be  brought  before  the  officer  in  charge  of  the  nearest  police 
station,  excepting  disputes  where  the  passengers  are  free- 
holders and  householders  in  the  city  of  New  York.  For 
a  failure  to  comply  with  the  decision  of  the  officer  the  de- 
linquent party  may  be  adjudged  guilty  of  disorderly  conduct 
and  fined  $io,  or,  not  paying  the  fine,  he  may  be  committed 
to  jail  for  ten  days.  This  law  includes  drivers  as  well  as 
passengers,  it  should  be  understood. 

§  12.  Legal  rates  of  fare. 

The  rates  of  fare  charged  by  taxicab  proprietors  cannot 
be  above  the  legal  rates  established  by  the  municipal  ordi- 
nances, at  least  not  unless  the  passenger  expressly  contracts 
to  pay  more  for  the  service  requested.  Under  no  circum- 
stances can  a  common  carrier  charge  an  unreasonable  fare, 
and  there  can  be  no  discrimination  in  the  rates  charged  with 
reference  to  persons.  The  "  legal  rates  "  prescribed  by  law 
mean  that  a  passenger  is  not  compelled  to  pay  over  those 
rates  against  his  consent.  These  rates  are  established  for 
the  protection  of  the  public  and  to  prevent  abuse.  In  New 
York  City  the  rates  for  general  driving  are  as  follows : 

Cabs. 

For  one   mile,   or   any  part  thereof $0.50 

For   each   additional   half  mile,   or   part  thereof 25 

For   any   stop  over   five   minutes   in   a  trip,   for  every  fifteen 

minutes  or  fraction  thereof 25 

Coaches. 

For  one   mile,   or  any   part  thereof $1.00 

For  each  additional  half  mile,  or  any  part  thereof 50 

For  every  stop  over  five  minutes  in  a  trip,   for  every  fifteen 

minutes  or  fraction  thereof 40 


278  'i'HE  LAW  OF  AUTOMOBILES. 

In  all  park  drives  in  New  York  one-half  hour  must  be 
allowed  passengers  for  sight-seeing.  Ferriage  and  bridge 
tolls  must  be  paid  by  passengers.  The  municipal  ordinances 
prescribe  the  city  blocks  as  the  standards  for  measuring 
the  fares  to  be  charged,  which  fact  would  seem  to  be  con- 
clusive on  the  legal  question  whether  the  ordinances  can 
be  said  to  cover  taxicabs.  , 

§  13.  Duty  to  carry  applicants. 

No  licensed  hackman  shall  *  *  *  refuse  or  neglect 
to  carry  any  orderly  person  or  persons  upon  request  any- 
where in  the  city,  unless  previously  engaged  or  unable  to 
do  so.  No  licensed  hackman  shall  carry  any  other  person 
than  the  passenger  first  employing  a  hack  without  the  con- 
sent of  said  passenger.  These  are  the  legal  requirements  of 
the  New  York  ordinance.  (See  Sec.  324.)  A  failure  to 
comply  with  these  drivers'  duties  may  be  punished  by  a 
fine. 

As  a  general  proposition  a  common  carrier  must  serve 
the  members  of  the  public  without  discrimination.  Colored 
persons  are  entitled  to  be  carried,  and,  if  refused,  may  re- 
cover damages,  and  drivers  refusing  to  carry  colored  per- 
sons in  the  city  of  New  York  may  be  fined.  Taxicab  pro- 
prietors may  authorize  their  drivers  to  expel  and  refuse  to 
carry  persons  who  are  obnoxious,  including  persons  who 
have  contagious  diseases,  intoxicated  and  unruly  persons. 
A  passenger  refusing  to  pay  the  legal  fare  may  also  be  ex- 
pelled. But  legal  liability  will  ensue  if  a  passenger  is  ex- 
pelled without  lawful  cause,  and  taxicab  proprietors  are 
liable  for  the  acts  of  their  chauffeurs  in  unlawfully  exclud- 
ing or  expelling  a  passenger.  Where  a  passenger  may 
legally  be  expelled  he  must  be  expelled  without  negligence, 
and  at  a  proper  and  safe  place.  No  more  force  than  is  nec- 
essary should  be  exercised,  and  no  force  at  all  unless  abso- 


TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE.        279 

lutely  necessary.     An  assault  is  unwarranted,  and  will  au- 
thorize a  recovery  of  damages  by  the  person  expelled. 

§  14.  Operation  of  vehicles. 

Taxicab  drivers  are  required  to  exercise  greater  care  than 
the  chauffeurs  of  private  automobiles,  because  they  are  en- 
gaged in  a  public  service,  and  not  only  are  they  required  to 
protect  persons  on  the  highway  generally,  but  passengers 
are  entitled  to  protection  by  the  exercise  of  care  and  cau- 
tion on  the  part  of  taxicab  chauffeurs.  For  negligence  of 
the  drivers  the  proprietors  of  taxicabs  are  liable,  and  so 
are  the  drivers  liable  personally  to  persons  negligently  in- 
jured. All  the  automobile  regulations  in  regard  to  stop- 
ping upon  frightening  horses  and  when  accidents  happen 
must  be  obeyed  by  drivers. 

§  15.  Liability  of  passengers  for  negligence. 

One  who  hires  a  taxicab  as  a  passenger  is  not  liable  for 
the  negligent  acts  of  the  chauffeur.  The  passenger  does 
not  make  the  chauffeur  his  servant  or  agent  by  merely  be- 
coming a  passenger,  even  though  he  directs  the  chauffeur 
where  and  how  to  travel.  The  chauffeur  himself  and  his 
employers  are  alone  liable  for  negligent  injuries.  But  if 
the  chauffeur  speeds  the  cab  faster  than  the  law  allows, 
at  the  request  of  the  passenger,  or  with  his  consent,  the  pas- 
senger may  be  criminally  liable  for  violating  the  speed 
limit,  according  to  a  recent  Massachusetts  decision. 


Liability  to  pay  fare. — It  should  be  understood  that  the  liability 
of  a  passenger  to  pay  the  rate  named  on  the  taximeter  or  otherwise 
posted,  arises  out  of  contract.  When  one  engages  a  taxicab  he  im- 
pliedly agrees  to  abide  by  the  posted  rates  provided  they  do  not 
exceed  the  legal  limit. 


2 so  THE  LAW  OF  AUTOMOBILES. 

In  England,  in  the  case  of  Donovan  v.  Construction 
Syndicate,  i  Q.  B.,  629,  Lord  Justice  Bowen  says: 

If  a  man  lets  out  a  carriage  on  hire  to  another,  he  in  no 
sense  places  the  driver  under  the  control  of  the  hirer,  ex- 
cept that  the  latter  may  indicate  the  destination  to  which  he 
wishes  to  be  driven.  The  driver  does  not  become  the  serv- 
ant of  the  person  he  is  driving,  and  if  the  driver  acts 
wrongly  the  hirer  can  only  complain  to  the  owner  of  the 
carriage.  If  the  hirer  actively  interferes  with  the  driving, 
and  injury  occurs  to  any  one,  the  hirer  may  be  liable,  not 
as  a  master,  but  as  the  procurer  and  cause  of  the  wrong- 
ful act  complained  of. 

In  the  United  States,  in  the  case  of  Little  v.  Hackett, 
116  U.  S.,  366,  in  a  luminous  opinion  by  Mr.  Justice  Field, 
of  the  United  States  Supreme  Court,  it  is  held  as  follows: 

A  person  who  hires  a  public  hack,  and  gives  the  driver 
directions  as  to  the  place  to  which  he  wishes  to  be  con- 
veyed, but  exercises  no  other  control  over  the  conduct  of 
the  driver,  is  not  responsible  for  his  acts  or  negligence. 

Mr.  Justice  Holmes,  of  the  Supreme  Judicial  Court  of 
Massachusetts  (now  a  justice  of  the  Supreme  Court  of  the 
United  States),  in  the  case  of  Driscoll  v.  Towle,  181  Mass., 
416,  says : 

In  cases  like  the  present  there  is  a  general  consensus  of 
authority  that,  although  a  driver  may  be  ordered  by  those 
who  have  dealt  with  his  master  to  go  to  this  place  or  that, 
to  take  this  or  that  burden,  to  hurry  or  to  take  his  time, 
nevertheless,  in  respect  to  the  manner  of  his  driving  and 
the  control  of  his  vehicle  he  remains  subject  to  no  orders 
but  those  of  the  man  who  pays  him.  Therefore  he  can 
make  no  one  else  liable  if  he  negligently  runs  a  person 
down  in  the  street. 

Upon  the  same  theory  advanced  above,   the   passenger 


TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE.        281 

cannot  be  deprived  of  his  right  of  recovery  against  any 
person  running  into  a  taxicab,  on  the  ground  that  the 
chauffeur  caused  the  injury  by  his  own  negHgence.  Where, 
for  example,  a  street  car  is  neghgently  run  into  a  taxicab, 
one  riding  in  the  cab  and  injured  may  recover,  although  the 
taxicab  driver  vi^as  negHgent.  (See  Eckels  v.  Muttschall, 
82  N.  E.  Rep.,  872;  Talotuchin  v.  Metropolitan  St.  Ry. 
Co,  106  S.  W.  Rep.  548.)  6 

§  16.  Foreign  chauffeurs. 

Foreign  chauffeurs  cannot  be  brought  into  the  United 
States  under  contract  to  drive  taxicabs,  for  to  do  this 
would  violate  the  Federal  law  prohibiting  the  importation  of 
foreign  labor.  A  chauffeur  is  engaged  in  manual  labor, 
although  his  calling  is  often  spoken  of  as  a  profession. 
(See  Smith  v.  Associated  Omnibus  Co.,  Div.  C,  916, 
wherein  it  is  held  that  a  chauffeur  is  a  manual  laborer.) 

§  17.  Eules  and  regulations. 

Taxicab  companies,  like  other  common  carriers,  have  the 
authority  to  adopt  rules  and  regulations  for  the  good  order 
of  the  business,  and  if  reasonable  the  rules  and  regulations 
promulgated  will  be  binding  on  the  public.  Such  regula- 
tions should  be  posted  in  a  conspicuous  place  on  the  vehicles 
W'here  they  can  easily  be  seen  by  passengers. 

§  18.  Regulation  of  taximeters. 

For  some  time  there  have  been  in  operation  public  vehicles 
with  instruments  called  "  taximeters  "  attached,  that  com- 


6.   See  the  other  chapters  of  this  book  discussing  the  law  of  the 
road  and  the  operation  of  automobiles  on  the  public  highways. 
See  the  discussion  of  imputed  negligence  elsewhere  in  this  book. 


282  THE  LAW  OF  AUTOMOBILES. 

pute  the  fare  to  be  paid  by  those  carried,  according  to  the 
distance  traveled  and  the  time  for  which  the  vehicle  is  en- 
gaged. Presumably  these  instruments  are  fairly  accurate, 
although  there  is  no  safeguard  against  "  short  measure  " 
other  than  that  which  may  be  found  in  the  criminal  statutes. 
A  taximeter  may  be  too  fast  or  too  slow.  If  the  instru- 
ment is  too  fast  then  the  customer  pays  too  much  money 
for  the  service  according  to  the  contract  existing  between 
the  carrier  and  the  passenger.  If  the  taximeter  is  too  slow, 
then  the  advantage  is  on  the  side  of  the  passenger.  Who  is 
to  determine  and  who  is  to  know  whether  these  public 
carriers  who  are  using  instruments  to  measure  the  fare 
are  making  correct  charges  for  transportation? 

The  taximeter  is  a  new  instrument  and  may  be  said  to  be 
used  for  the  purpose  of  measuring  distance.  It  may  right- 
fully be  called  a  measure,  since  its  purpose  is  to  measure  the 
distance  traveled  by  a  taxicab,  upon  which  measured  dis- 
tance the  compensation  is  to  be  computed  according  to 
the  scheduled  rates  of  the  operating  company.  I  believe 
that  no  one  will  dispute  that  the  taximeter  is  in  the  common 
and  ordinary  acceptance  of  the  term  a  measure  of  distance, 
if  you  please,  of  linear  feet,  yards  or  miles.  It  is  a  yard- 
stick in  a  certain  sense.  The  idea  that  the  taximeter  con- 
stitutes a  measure  may  strike  some  as  novel,  but  upon  reflec- 
tion the  character  of  this  instrument  as  a  measure  will 
readily  be  appreciated. 

The  United  States  Government  has  established  certain 
units  of  measurement.  The  States  of  the  United  States 
have  by  legislation  also  fixed  certain  units  of  measure. 
There  are  a  standard  yard,  a  standard  pound  for  weight, 
and  so  on.  Realizing  that  the  public  is  more  or  less  de- 
pendent upon  the  accuracy  of  the  instruments  used  by  vari- 
ous dealers,  statutory  regulations  have  been  enacted  re- 
quiring scales  and  various  measures  to  be  inspected  annu- 


TAXICAB  AND  PUBLIC  AUTOMOBILE  SERVICE.        2S3 

ally,  or  otherwise  to  be  compared  with  the  standard,  ac- 
curate units,  and  to  be  sealed  with  the  seal  of  the  Govern- 
ment by  an  official  sealer,  whose  duty  it  is  to  see  that 
measures  are  accurate.  In  New  York,  for  example,  there 
are  state,  country,  city  and  town  sealers.  Sometimes  the 
duty  to  test  scales  and  measures  is  imposed  upon  municipal 
corporations.  The  various  inspectors  and  sealers  are  com- 
pelled to  give  bonds  for  the  faithful  discharge  of  their 
duties  and  to  perform  their  work  in  accordance  with  the 
legal  requirements  of  the  statutes.  The  public  have  a  right 
to  the  protection  which  these  laws  afford. 

When  one  hails  a  taxicab  with  the  object  of  engaging 
it  he  offers  to  purchase  a  ride  according  to  the  established 
tariff  as  indicated  by  a  correct  taximeter.  He  does  not 
agree  to  pay  for  a  ride  according  to  the  reading  of  an 
incorrect  instrument,  no  matter  whether  the  inaccuracy  is 
due  to  mere  mistake  or  actual  fraud.  The  taxicab  company 
sells  and  the  passenger  buys  a  ride.  The  situation  is  similar 
in  the  case  of  a  person  going  into  a  store  and  buying  a  pound 
of  butter  or  so  many  tons  of  coal,  in  which  latter  cases  the 
scales  by  which  the  commodities  are  weighed  must  be  in- 
spected and  sealed  every  so  often  by  the  public  sealer.  Tax- 
imeters are  not  now  inspected,  nor  are  they  sealed.  There 
is  no  supervision  over  them  whatsoever. 

It  is  the  duty  of  inspectors  and  sealers  to  inspect  and  seal 
all  measures,  to  have  a  correct  standard  unit,  and  to  test  the 
various  measuring  machines  or  appliances  used  in  dealing 
with  the  public.  Thus  far  the  public  officials  charged  with 
this  work  have  failed  to  perform  the  duties  of  their  offices 
with  respect  to  taximeters.  It  may  require  some  mechan- 
ical knowledge  to  properly  inspect  a  taximeter,  and  the 
official  may  be  compelled  to  have  on  hand  in  his  office  a 
correct  instrument  for  purposes  of  testing  and  comparison. 
Of  course,  taximeter  manufacturers  and  taxicab  concerns 


284  THE  LAW  OF  AUTOMOBILES. 

may  mal<e  some  opposition  to  placing  their  instruments 
under  the  jurisdiction  of  the  authorities  having  control 
over  weights  and  measures.  Nevertheless,  it  is  a  right  be- 
longing to  the  public  which  should  be  enforced. 

In  case  it  can  be  shown  that  a  taximeter  is  out  of  order 
no  charge  can  be  made  for  the  service,  since  the  measure 
is  false.  If  a  taximeter  is  intentionally  used  which  is  known 
to  be  incorrect,  then  under  the  old  common  law  the  user 
may  be  indicted  for  using  a  false  measure.  Under  the 
statutes  of  the  various  states  this  is  also  made  a  crime. 
To  neglect  or  to  refuse  to  have  a  measure  sealed  ordinarily 
entails  a  statutory  penalty,  and  to  use  a  measuring  instru- 
ment which  has  not  been  sealed  in  many  jurisdictions 
constitutes  a  misdemeanor.  It  is  more  than  probable  that 
the  taximeters  used  on  taxicabs  in  the  cities  come  within 
at  least  the  spirit  of  the  provisions  of  the  weights  and 
measures  laws. 

There  may  be  some  question  as  to  whether  a  taximeter 
is  included  within  an  ordinance,  which  provides  for  meas- 
ures of  "  things  "  or  "  articles  "  sold.  A  ride  is  not  looked 
upon  as  a  chattel,  consequently  it  may  not,  ordinarily,  be 
called  "a.  thing"  or  an  "article";  however,  by  a  broader 
construction  the  term  may  include  "  anything  tangible  or 
intangible,"  in  which  latter  case  a  ride  which  is  purchased 
is  included. 


CHAPTER  XXin. 

SALE  OF  AUTOMOBILES— WARRANTIES  AND 
REPRESENTATIONS. 

Sec.  1.  Recovery  back  of  price. 

2.  Automobile  unsatisfactory. 

3.  "  Seller's  talk." 

4.  Recission  of  contract. 

5.  Measure  of  damages. 

6.  Agencies. 

7.  Commissions. 

§  1.  Recovery  back  of  price. 

The  purchaser  of  an  automobile  brought  an  action 
against  the  vendor  to  recover  the  $685  which  he  had  paid 
for  the  machine,  showing  that  the  machine  was  sold  under 
a  warranty  for  a  period  of  one  year,  that  is  got  out  of  order 
shortly  after  he  bought  it  and  that,  after  repeated  unsuc- 
cessful attempts  to  remedy  the  defects,  he  sent  it  to  a  gar- 
age and  wrote  the  vendor  that  he  had  returned  it  under 
the  terms  of  the  agreement.  It  was  held  that  the  evidence 
justified  the  jury  in  finding  that  there  had  been  a  breach 
of  the  warranty  and  that  the  purchaser  was  entitled  to  the 
return  of  his  money.  Beecroft  v.  Vat]  Schaick,  104  N.  Y. 
Supp.  458. 

An  automobile  was  sold  under  a  warranty  for  one  year, 
and  soon  after  delivery  it  got  out  of  order.  After  repeated 
unsuccessful  attempts  to  remedy  the  defects,  the  purchaser 

[285J 


2S6  THE  LAW  OF  AUTOMOBILES. 

sent  it  to  a  garage  and  wrote  the  defendant  that  he  returned 
it  under  the  terms  of  the  agreement.  It  was  held  that  the 
buyer  could  not  recover  the  price  that  he  paid  for  the  ma- 
chine.    Beecroft  v.  Van  Schaick,  104  N.  Y.  Supp.,  458. 

i  2.  Automobile  unsatisfactory. 

A  woman,  desirous  of  buying  an  automobile  that  she 
could  run  without  manual  labor,  purchased  a  machine  from 
a  manufacturer  who  assured  her  that  a  woman  could  oper- 
ate it.  The  contract  of  sale  stipulated  that  the  machine 
should  be  satisfactory  to  her.  Under  these  facts  the  court 
held  that  the  woman  had  the  right  to  return  the  automobile 
and  to  have  her  money  returned  if  the  vehicle  was  not 
satisfactory  to  her.  See  Walker  v.  Grout  Brothers  Auto- 
mobile Company,  102  S.  W.  Rep.,  25.  In  this  case  the  St. 
Louis  Court  of  Appeals,  by  Judge  Bland,  said,  in  differ- 
entiating the  principle  of  law  to  be  applied  concerning  the 
purchase  of  various  articles :  "  An  automobile  is  not  a 
work  of  art,  nor  a  machine  about  which  there  can  be  any 
very  peculiar  fancy,  or  taste,  but  it  is  not  a  common,  gross 
thing,  like  a  road  wagon  or  an  ox  cart.  It  is  a  complicated 
machine,  and  cannot  be  safely  run  by  an  inexperienced 
person,  and  is  not  ordinarily  run  by  a  lady  chauffeur.  *  *  * 
It  seems  to  us  the  case  comes  within  that  class  (of  transac- 
tions) where  the  right  of  decision  as  to  whether  or  not  the 
article  furnished  is  satisfactory  was  reserved  for  the  plain- 
tiff." 

§  3.  "  Seller's  talk." 

The  plaintiff,  when  purchasing  an  automobile  for  about 
half  the  price  of  a  new  one,  was  told  by  the  agent  that  it 
had  been  used  as  a  demonstrating  car,  had  been  run  about 
500  miles,  and  was  in  first-class  condition.     The  Supreme 


SALE  OF  AUTOMOBILES.  287 

Judicial  Court  of  Massachusetts  held  that  not  only  was 
there  no  express  warranty,  all  that  was  said  being  "  sell- 
er's talk,"  but  there  was  no  implied  warranty  on  which 
recovery' could  be  had  for  the  breaking  of  the  crank  shaft 
after  two  months'  use.  Morley  v.  Consolidated  Mfg.  Co., 
8i  N.  E.  Rep.  993. 

§  4.  Recission  of  contract. 

The  purchaser  of  a  secondhand  automobile  is  not  bound 
to  rescind  his  contract  upon  the  first  discovery  of  some  one 
imperfection  or  misrepresentation     He  is  entitled  to  time 
for  inquiries,  experiments  and  tests.     He  can  waive  im- 
perfections or  misrepresentations  first  discovered,  and  yet 
afterwards  be  entitled  to  rescind   upon  the   discovery  of 
others.    Suggestions  from  the  vendor  or  his  agent,  to  make 
further  inquiries  or  trials,  would  also  extend  the  time  for 
rescission.     Where  an  auto  is  purchased  upon  the  repre- 
sensation  that  it  is  a  1904  model  and  in  perfect  working 
order,  and  the  purchaser  afterwards  be  entitled  to  rescind 
upon  the  discovery  the  machine,  upon  trial,  proves  to  be  un- 
workable and  is  damaged  by  reason  of  its  imperfections 
through  no  fault  of  the  purchaser,  the  purchaser  may  re- 
scind his  contract  and  is  not  liable  for  the  purchase  price. 
To  accomplish  a  rescission  of  the  contract  there  must  be  a 
return  of  the  machine  to  the  vendor.     But  this  is  a  right 
which  the  vendor  may  waive.    And  where  the  vendor  gives 
the  purchaser  to  understand  that  it  would  be  useless  to  at- 
tempt to  return  the  machine,  no  return  is  necessary.     The 
law  does  not  require  useless  acts  or  words,  and  taking  the 
vendor  at  his  word,  the  purchaser  may  place  the  machine 
where  he  pleases,  at  least  until  the  vendor  withdraws  his 
refusal  to  accept  it.     Pitcher  v.  Webber,  Supreme  Judicial 
Court  of  Maine,  68  Atl.  593. 


288  THE  LAW  OF^AUTOMOBILES. 

§  5-  Measure  of  damages- 

In  the  case  of  Isaacs  v.  Wanamaker,  8i  N.  E.,  763,  a 
machine  was  purchased  under  a  warranty  and  the  buyer, 
on  receiving  the  machine  at  the  place  of  dehvery,  dis- 
covered a  breach  of  the  warranty  and  promptly  offered  to 
return  the  machine  and  demanded  repayment  of  the  price. 
On  the  trial  of  the  action  brought  to  recover  the  purchase 
price,  it  was  held  that  the  sale  was  fully  executed  and  was 
not  rescinded,  and  that  the  measure  of  the  purchaser's  dam- 
ages was  the  difference  between  the  value  of  the  machine 
if  it  had  been  as  warranted  and  its  actual  value. 

§  6.  Agencies. 

Legally  speaking,  it  is  said  "  an  agency,  within  the  mean- 
ing of  the  automobile  trade,  consists  in  giving  to  the  agent 
the  exclusive  right  to  purchase  for  cash  from  the  man- 
ufacturer machines  at  a  discount  from  the  list  price,  and  to 
retail  them  to  customers  within  specified  territory  at  the 
full  list  price.  In  other  words,  no  commission,  as  such,  is 
paid  to  an  agent  on  the  sale  of  a  machine,  but  he  has  the 
exclusive  right  to  certain  territory  and  purchases  on  his 
own  account  for  cash  at  a  discount  of  20  %  from  the 
retail  list  price."  See  Fredricksen  v.  Locomobile  Co.  of 
America,  in  N.  W.  Rep.  845.  See  also  Cedar  Rapids 
Auto  &  Supply  Co.  v.  Jeffery  &  Co.,  116  N.  W.  Rep.  1054 
for  construction  of  agency  contract. 

§  7.  Commissions. 

Where  one  party  requests  another  to  perform  valuable 
services  in  effecting  the  sale  of  an  automobile,  agreeing  "  to 
protect  "  him  if  such  sale  is  made,  and  the  influence  and 
solicitation  of  the  party  so  engaged  are  the  efficient  cause 


SALE  OF  AUTOMOBILES.  289 

in  effecting  the  sale,  such  contract  should  be  construed  in 
the  light  of  the  surrounding  circumstances,  and  the  party- 
should  have  his  commission.     Fredricksen  v.  Locomobile 
Co.  of  America,  iii  N.  W.  Rep.  845. 
19 


CHAPTER  XXIV. 
SAFETY  OF  ROADS  FOR  AUTOMOBILES. . 

Sec.  1.  Right  to  have  safe  roads. 

2.  Condition  of  roads. 

3.  Liability  for  defective  highways. 

4.  Duty  of  city  to  light  streets. 

5.  Massachusetts  decision. 

§  1.  Right  to  have  safe  roads. 

Equal  rights  of  the  motor  car  on  the  road  having  been 
estabhshed,  it  naturally  follows  that  the  automobile  is 
entitled  to  all  the  rights  pertaining  to  the  suitable  condition 
of  the  public  thoroughfares,  including  the  right  to  have 
safe  roads,  not  only  for  the  general  use  of  the  highway,  but 
for  use  of  the  pneumatic  rubber-tired  vehicle.  The  im- 
portance of  proper  road  conditions  for  automobiles  cannot 
be  overestimated.  If  the  automobile  is  to  be  the  pre- 
dominating vehicle  on  our  public  ways,  it  is  necessary  that 
the  roads  should  be  so  constructed  and  maintained  as  to 
meet  the  requirements  for  the  safe  operation  of  the  motor 
carriage,  and  it  is  a  duty  resting  upon  the  highway 
authorities  to  recognize  this  fact.  The  law  keeps  up  with 
improvement  and  progress.  Those  officers  who  execute 
the  law  are  bound  to  perform  their  duties  in  accordance 
with  the  law  and  the  necessities  of  the  times. 

§  2.  Condition  of  roads. 

The  question  is  naturally  asked  whether  roads  that  are 
safe  and  suitable  for  the  metal-tired  vehicles  are  ordinarily 

[290] 


SAFETY  OF  ROADS  FOR  AUTOMOBILES.  291 

safe  for  the  automobile  ?  If  they  are,  then  the  law  demands^ 
nothing  more  in  road  construction  for  the  motor  vehicle 
than  for  the  vehicle  which  is  drawn  by  muscular  power. 
This  question  is  probably  one  of  the  least  difficult  to  answer 
of  any  concerning  the  legal  rights  of  motoring.  The  auto- 
mobile's novel  motive  power,  communicating  force  in 
propelling  the  machine  in  a  new  way  and  from  an  unusual 
direction,  and  the  means  of  contact  with  the  road  constitute 
the  motor  vehicle  such  a  radically  different  means  of  trans- 
portation than  the  ordinary  carriage,  that  new  road  con- 
ditions are  imperatively  necessary.  Let  us  consider  where- 
in improved  conditions  of  the  road  are  indispensable.  Take 
for  example  the  motor  car's  means  of  contact  with  the  road, 
the  rubber  tire.  This  comparatively  new  form  of  tire  calls 
for  road  construction  which  will  not  injure  its  use,  and  this 
requirement  is  of  vital  importance,  since  an  injury  to  the 
tire  may  mean  substantial  injury  to  the  machine  and  a 
fatality  to  the  occupants.  Not  a  few  cases  already  have 
occurred  wherein  serious  accidents  resulted  from  injuries 
to  tires.  Suppose  a  soft  spot  should  be  left  in  a  road 
after  digging  up  the  surface,  which  is  not  an  infrequent 
condition  in  many  places,  and  suppose  an  automobile, 
traveling  at  a  fair  rate  of  speed,  strikes  the  soft  spot 
with  one  of  the  front  wheels.  Is  the  result  exactly  the 
same,  or  apt  to  be  so,  in  the  case  of  a  vehicle  drawn  by  an 
animal?  The  question  does  not  need  argument  for  its 
solution.  The  fact  that  the  power  in  one  case  is  com- 
municated on  the  back  of  the  vehicle,  and  it  is  on  the  front 
in  the  other  situation,  renders  the  liability  to  danger 
different,  and  necessarily  such  a  road  less  safe  for  auto- 
mobiles than  other  vehicles.  This  has  a  direct  bearing  on 
the  duties  of  highway  authorities  and  municipal  liability 
for  defects  in  streets. 


2<J2  THE  LAW  OF  AUTOMOBILES. 

§  3.  Liability  for  defective  highways. 

As  bearing  on  the  subject  under  consideration,  an  im- 
portant case  recently  decided  by  the  Supreme  Judicial  Court 
of  Massachusetts  (  Baker  v.  City  of  Fall  River,  yz  N.  E. 
Rep.  336)  is  of  great  interest.  In  this  case  it  was  decided 
that  under  the  Massachusetts  law  providing  that  highways 
shall  be  kept  in  a  reasonably  safe  condition  for  travelers 
with  horses,  teams,  and  carriages;  an  automobile  being 
a  vehicle  in  common  use  for  transporting  persons  and 
merchandise,  a  defect  in  a  street  which  caused  an  injury 
to  one  operating  an  automobile,  being  a  defect  dangerous 
to  ordinary  vehicles,  the  fact  that  the  conveyance  was  an 
automobile  did  not  preclude  a  recovery  against  the  city. 
The  court  said  that  the  law  "  deals  with  the  state  of  repairs 
in  which  ways  are  to  be  kept.  In  the  present  case  the 
alleged  defect  was  one  which  would  be  dangerous  to 
ordinary  vehicles.  Therefore,  we  have  no  occasion  to 
consider  whether  roads  must  be  kept  in  such  a  state  of 
repair  and  smoothness  that  an  automobile  can  go  over  them 
with  assured  safety."  It  will  be  seen  that  the  issue  intended 
to  be  presented  herein  was  not  decided  by  the  Massachusetts 
case,  but  the  statement  of  the  court,  in  the  matter  quoted, 
that  the  question  of  safe  roads  for  automobiles  was  not 
then  presented  by  the  facts  before  it.  suggested  grav^  ques- 
tions which  are  certain  to  arise  some  time  in  the  near  future. 

§  4.  Duty  of  city  to  light  streets. 

A  recent  decision  of  the  Court  of  Appeals  of  the  State 
of  New  York  concerning  the  duty  of  a  municipality  to  light 
its  streets  so  as  to  avoid  injury  to  travelers  is  of  interest 
and  importance.  In  this  case  an  action  for  damages  was 
brought  as  a  result  of  an  automobile  accident  occurring 
in  the  night.  The  automobile  ran  through  a  fence  and 
guard  at  the  end  of  a  street,  forming  a  cul  de  sac,  and  fell 


SAFETY  OF  ROADS  FOR  AUTOMOBILES.  293 

into  a  pit.  The  evidence  disclosed  that  the  machine  was 
going  8  or  ID  miles  an  hour;  that  a  similar  accident  had 
previously  occurred  at  that  place,  and  had  been  reported 
to  the  city  authorities.  From  the  evidence  it  was  left  in 
doubt  whether  there  was  sufficient  light  in  the  street  at  the 
place  of  the  accident  to  enable  a  driver  exercising  reasonable 
care  to  discover  the  fence  and  guard  rail  in  time  to  avert 
an  accident.  The  court  held  that  the  case  was  one  for  the 
jury,  on  the  question  of  the  city  having  performed  its  duty 
properly  in  regard  to  lighting  the  street.  Judge  Werner, 
the  justice  writing  the  opinion  of  the  court,  stated  the  law 
to  be  as  follows  ;"****  Although  it  [the  city]  owed 
no  special  duty  to  those  who  ride  in  automobiles,  and  was 
not  an  insurer  of  the  travelers  using  that  street,  it  was  at 
all  times  bound  to  exercise  due  care  to  keep  the  highway 
reasonably  safe  and  free  from  dangerous  defects  (Hunt  v. 
Mayor,  etc.,  of  N.  Y.,  109  N.  Y.  134;  Hubbell  v.  City  of 
Yonkers,  104  id.,  434).  *  *  *  *  'j^j^g  streets  of  a  city 
may  be  as  freely  used  by  those  who  ride  in  automobiles  as 
by  pedestrians  or  travelers,  and  if  this  cul  de  sac  was  likely 
to  be  a  dangerous  place  in  the  night  to  any  class  of  way- 
farers who  might  be  misled  into  thinking  that  it  would 
be  a  continuation  of  the  highway,  it  should  have  been  so 
well  lighted  as  to  give  fair  warning  that  it  was  merely  a  cul 
de  sac,  or  so  well  guarded  as  to  prevent  entrance  to  the 
point  of  danger,  for  '  a  public  highway  may  be  used  in  the 
darkest  night ;  a  night  so  dark  that  the  keenest  and  clearest 
vision  may  not  be  able  to  detect  obstructions  and  defects  ' 
(Harris  v.  Uebelhoer,  75  N.  Y.,  175)."  The  decision 
referred  to  is  Corcoran  v.  City  of  New  York,  New  York 
Law  Journal,  March  27,   1907. 

§  5   Massachusetts  decision. 

In   an  action  against   the  town  of  Ayer,    Mass.,   by  a 
motorist  to  recover  damages  for  injuries  to  his  car  received 


294  THE  LAW  OF  AUTOMOBILES. 

while  he  was  attempting  to  drive  it  through  a  road  deep 
with  sand,  the  Supreme  Judicial  Court  of  Massachusetts  has 
recently  held  that  the  town  was  not  liable.  The  plaintiff 
was  given  a  verdict  for  damages  in  the  local  court  in  which 
the  suit  was  commenced,  but  the  higher  court  reversed  the 
decision,  holding  that,  while  towns  are  responsible  for  such 
accidents  to  carriages  using  their  roads,  the  owner  of  the 
automobile  must  accept  the  roads  as  he  finds  them  and 
cannot  claim  damages,  at  least  where  his  auto  is  injured 
upon  a  road  over  which  other  vehicles  could  pass  in  safety. 
Doherty  v.  Town  of  Ayer,  83  N.  E.  Rep.  677. 


CHAPTER  XXV. 

AUTOMOBILE  LEGISLATION. 

Sec.  1.  General  considerations. 

2.  Fairness  of  laws. 

3.  Prohibiting  reckless  motoring. 

4.  Uniformity  of  automobile  legislation. 

5.  Non-resident  automobilists. 

6.  What  may  be  expected  of  future  laws. 

7.  Construction  of  statutes. 

8.  Implied  exceptions. 

9.  The  smoke  nuisance. 

§  1.  General  considerations. 

The  legislative  regulation  of  motoring  is  of  vital  im- 
portance to  motor-car  owners  and  operators,  not  only  from 
the  standpoint  of  keeping  within  the  law,  but  because  every 
motorist  has,  or  should  have,  a  desire  to  see  that  these  laws 
are  fair  and  reasonable  in  their  tendency  to  protect  public 
safety.  Prejudicial  or  otherwise  discriminating  legislation 
against  motoring  is  to  be  condemned,  and  every  effort  should 
be  made  in  maintaining  the  freedom  of  the  road  and  to 
protect  the  road  rights  from  measures  imposing  unreason- 
able hardships.    Taxation  of  transit  should  not  exist. 

§  2.  Fairness  of  laws. 

Legislation  on  the  whole,  has  been  very  fair  in  most 
of  the  states  in  its  interest  for  the  public  and  the  motorist. 

[295] 


296  THE  LAW  OF  AUTOMOBILES. 

Only  occasionally  enactments  have  seemed  to  be  grossly 
unreasonable  and  discriminating.  The  greatest  complaint 
is  concerning  the  oppressive  execution  of  the  laws  by 
unscrupulous  officers  rather  than  against  the  regulations 
themselves.  Some  of  the  law  periodicals  are  advocating 
more  stringent  legislation  in  reference  to  reckless  motoring 
and  the  use  of  motor  cars  on  the  streets.  One  who  has 
studied  and  compared  the  legislation  of  the  various  states 
of  the  Union  and  of  England,  and  the  decisions  handed 
down  by  the  courts,  and  has  considered  well  the  legal  status 
of  the  motor  car,  would  hesitate  long  before  advising  the 
enactment  of  drastic  legislation  which  would  also  unduly 
restrict  the  rights  of  the  careful  driver. 

§  3.  Prohibiting  reckless  motoring. 

Legislation  against  reckless  motoring  is,  of  course,  de- 
sirable, but  the  prudent  operator  should  not  necessarily  be 
restricted.  The  "  English  Motor  Car  Act "  contains 
interesting  provisions  in  this  respect,  and  that  act  is  worth 
consideration  by  the  state  legislatures  as  much  as  many 
other  valuable  English  statutes  that  we  have  adopted. 
The  provision  against  reckless  motoring  makes  it  a  criminal 
offense  if  any  person  drives  a  motor  car  on  a  public  high- 
way "  recklessly  or  negligently,  or  at  a  speed,  or  in  a 
manner,  which  is  dangerous  to  the  public,  having  regard 
to  all  the  circumstances  of  the  case,  including  the  nature, 
condition,  and  use  of  the  highway,  and  to  the  amount  of 
traffic  which  actually  is  at  the  time  or  w^hich  might 
reasonably  be  expected  to  be  on  the  highway."  This  is  a 
wise  and  sensible  provision.  It  makes  due  care  the  test 
of  all  questions  of  prudent  operation,  having  regard  to  the 
nature  and  condition  of  the  road,  the  traffic  and  the  circum- 
stances of  each  particular  case.     The  rate  of  speed,  if  with- 


AUTOMOBILE  LEGISLATION.  297 

in  the  limit,  is  immaterial  if  the  motoring  is  done  with 
prudence.  The  personal  elements  of  motoring  is  here 
regulated,  while  the  machine  itself  is  left  unrestricted.  This 
legislation  is  aimed  directly  at  the  driver  who  has  been  the 
direct  cause  of  prejudicial  feeling  against  the  motorist. 
England  has  in  this  statute  delivered  a  blow  to  the  careless 
operator,  and  has,  at  the  same  time,  protected  the  chauffeur 
w^ho  is  cautiously  mindful  of  his  duties  and  responsibilities 
to  his  employer  and  to  the  public.  Let  the  States  of  the 
United  States  study  and  follow  the  successful  operation  of 
the  English  enactment.  Connecticut  has  enacted  regula- 
tions controlling  speed  somewhat  similar  in  a  general  way 
to  the  provisions  in  the  English  law. 

§  4.  Uniformity  of  automobile  legislation. 

Uniformity  of  state  legislation  is  always  desirable  in  all 
branches  of  the  law  where  the  conditions  are  the  same. 
It  is  especially  necessary  where  the  subject  of  legislation 
extends  beyond  the  state's  jurisdiction  and  into  and  through 
other  states.  Motoring  is  decidedly  a  subject  of  this- 
character.  Not  only  is  uniform  motor-car  legislation  an 
advantage  to  the  motorist,  but  the  states  would  be  benefited 
by  it.  A  state  judicial  decision  construing  a  provision  of 
the  law  would  have  great  force  in  another  state  as  a  correct 
exposition  of  the  regulation,  and  unnecessary  trouble  and 
expense  could  thereby  be  avoided.  The  execution  of  the 
statutory  provisions  would  also  be  more  uniform  and 
equitable  since  each  state  would  determine  its  procedure 
from  the  experience  of  other  states.  The  legislation  as  it 
now  exists  possesses  little  uniformity.  As  pointed  out 
before  there  are  some  serious  reasons  against  uniform  auto- 
mobile legislation. 


298  THE  LAW  OF  AUTOMOBILES. 

§  5-  Non-resident  automobilists. 

Some  of  the  states  have  been  solicitous  in  reference  to 
the  motoring  privileges  of  nonresidents.  Under  the 
statutary  provisions  in  some  of  the  states,  nonresident 
motorists  may  operate  their  machines  in  the  state  if  the 
laws  of  the  resident  state  have  been  complied  with.  Some 
of  the  states,  however,  have  not  had  the  kindness  to  extend 
this  hospitality,  and  require  registration  and  licensing  from 
all.  But  there  are  certain  privileges,  immunities,  and  rights 
which  the  state  is  bound  to  afford  to  the  motorist  of  another 
state  and  which  the  state  cannot  lawfully  or  constitutionally 
deny.  The  state  has  no  power  to  enact  legislation  impos- 
ing greater  restrictions  or  burdens  on  nonresidents  than 
those  regulating  resident  motorists.  The  nonresident  has 
a  right  to  the  equal  protection  of  the  laws  and  cannot  be 
discriminated  against  by  hostile  enactments  not  imposed 
against  the  people  of  the  state  enacting  the  legislation.  In 
this  matter,  however,  the  states  have  kept  fairly  well  within 
the  bounds  of  constitutional  authority,  except  New  Jersey 
and  many  of  them  have  been  courteous  enough  to  extend 
greater  privileges  to  the  nonresident  than  to  residents  by 
exempting  the  former  from  registration  and  licensing.  A 
nonresident  must  carry  his  home  state  numbers,  etc. 

§  6-  What  may  be  expected  of  future  laws. 

What  may  be  expected  from  future  automobile  legisla- 
tion? To  answer  this  question  the  proven  defects  of  ex- 
isting regulations,  the  conduct  of  the  motor  car  operators, 
and  the  increase  of  motor  car  traffic  must  be  considered. 
These,  however,  are  not  all  the  matters  to  be  taken  into 
account.  We  may  expect  regulations  protecting  the 
motorist.  It  is  possible  that  the  manufacture  and  construc- 
tion of  machines  may  have  to  be  regulated  to  some  extent. 


AUTOMOBILE  LEGISLATION.  299 

This  will  depend,  of  course,  on  the  standard  of  construction 
maintained  with  a  view  of  protecting  the  safety  of  the 
occupants  and  others.  Questions  will  have  to  be  solved 
as  they  arise,  and  in  order  to  obtain  the  most  beneficial 
results  for  all  parties  causes  and  effects  should  be  carefully 
studied,  and  both  the  state  and  the  motorist  should  co- 
operate.^ 


1.  The  New  York  Motor  Vehicle  Law  was  passed  really  in  the 
interests  of  motorists.  The  various  rules,  regulations  and  ordinances 
in  the  many  villages  and  cities  of  the  State  upon  the  various  sub- 
jects of  licenses,  speed  and  penalties  were  so  numerous,  conflicting 
and  confusing  that  the  persons  interested  in  the  subject  appealed 
to  and  succeeded  in  having  passed  by  the  Legislature  a  general  act 
under  which  a  motorist  in  any  part  of  the  State  would  know  ex- 
actly what  his  restrictions  and  his  liabilities  were,  and  the  act  ex- 
pressly repealed  all  ordinances,  rules  or  regulations  theretofore  in 
effect,  and  permitted  local  authorities  to  thereafter  pass  ordinances, 
rules  or  regulations  in  regard  to  the  speed  of  motor  vehicles  on  the 
public  highway  only  under  three  express  conditions:  First,  that 
such  ordinances,  rules  or  regulations  should  fix  the  same  speed 
limitations  for  all  other  vehicles;  second,  that  the  local  authorities 
should  have  placed  conspicuously  on  each  main  public  highway, 
where  crossed  by  the  city  or  village  line,  and  on  every  main  high- 
way, where  the  rate  of  speed  changes,  signs  of  sufBcient  size  to  be 
easily  readable,  showing  the  rate  of  speed  permitted;  and  third,  that 
such  ordinances  should  fix  the  penalties  for  violation  thereof  similar 
to  and  no  greater  than  those  fixed  by  the  local  authorities  for  vio- 
lations of  the  speed  regulations  for  all  other  vehicles.  Hainer  v. 
Keeper  of  the  Prison,  (Appellate  Division  of  the  Supreme  Court  of 
New  York),  New  York  Law  Journal,  Oct.  31,  1907. 

Advertising;  on  public  automobiles. — Exterior  advertising,  al- 
though aesthetically  offensive,  upon  the  motor  vehicles  of  a  corpora- 
tion organized  to  operate  a  public  stage  or  omnibus  line  is  not  a 
public  nuisance. 

Engaging  in  such  exterior  advertising,  or  granting  to  others  the 
privilege  therefor,  by  such  a  corporation,  held  ultra  vires  as  not 
necessarily  incidental  to  the  purpose  of  its  existence  or  within  the 
implied  authority  of  its  charter. 

An  ordinance  of  the  City  of  New  York  (section  41,  chapter  2, 
article  IV,  Part  II,  Code  of  Ordinances)    prohibiting  "  advertising 


300  TUE  LAW  OF  AUTOMOBILES. 

§  7'  Construction  of  statutes. 

While  the  rule  of  strict  construction  applies  generally  to 
criminal  statutes,  such  as  are  the  various  automobile 
enactments,  the  excessive  strict  construction  that  formerly 
prevailed  has  been  so  modified  as  to  look  to  the  legislative 
intent  when  plainly  manifested;  the  courts,  on  the  one 
hand,  refusing  to  hold  those  not  clearly  brought  within 
the  scope  of  the  statute,  and,  on  the  other  hand,  refusing, 
by  radical  refinement  or  unreasonable,  incongruous  con- 
struction, to  discharge  those  plainly  within  its  scope. — State 
V.  Goodwin,  82  N.  E.  Rep.  459, 

§  8.  Implied  exceptions. 

Statutes  unrestricted  in  terms  are  not  infrequentlv  con- 
strued to  admit  of  implied  exceptions.  Kelley  v.  Killourey, 
81  Conn.  320.  This  is  not  an  automobile  case,  however, 
the  principle  announced  is  one  of  great  importance  in  con- 


wagons  "  in  the  streets  of  the  Borough  of  Manhattan,  held  authorized 
by  section  50,  Greater  New  York  Charter,  empowering  the  board  of 
aldermen  "  to  regulate  the  use  of  the  streets  *  *  *  by  vehicles " 
*  *  *  and  "  the  exhibition  of  advertisements  or  handbills  along  the 
streets." 

Such  ordinances  is  not  unconstitutional  as  depriving  a  stage  com- 
pany attempting  to  engage  in  exterior  advertising  of  its  property 
without  due  process  of  law,  or  of  the  equal  protection  of  the  laws, 
or  as  impairing  the  obligation  of  its  contracts. 

Se.mulk  the  vehicles  of  a  stage  or  omnibus  company  are  "  wagons  " 
within  the  meaning  of  such  ordinance. 

Where  a  public  corporation  shows  itself  to  be  engaged  in  an  act 
unauthorized  by  law,  it  is  not  entitled  to  an  injunction  to  restrain 
possible   future  lawful   interference  therewith. 

An  action  for  an  injunction  to  restrain  the  city  from  proceedings 
to  compel  the  discontinuance  of  such  exterior  advertising  dismissed 
upon  the  merits.  See  The  Fifth  Avenue  Coach  Co.  v.  The  City  of 
New  York,  N.  Y.  Law  Journal,  Jan.  23,  1908. 


AUTOMOBILE  LEGISLATION.  301 

struing  automobile  regulations,  especially  the  law  of  the 
road. 


§  9.  The  smoke  nuisance. 

That  the  emission  of  offensive  smoke  from  automobiles, 
especially  in  cities  and  inhabited  districts,  is  a  nuisance  can- 
not be  disputed.     The  accompanying  odor  is  not  pleasant 
and  may  possibly  be  injurious,  if  it  is  constantly  present, 
either  to  health  or  vegetation  in  the  parks  or  country.     The 
detrimental  effect  upon  persons  and  plant  life  has  not  as  yet 
been  authoritatively  determined,  although  in  France  it  has 
been  claimed  that  the  fumes  coming  from  the  exhausts  of 
automobiles  injured  the  growth  of   vegetation  along  the 
boulevards.     Whether  this  be  true  or  not,  the  fact  that  the 
smoke  is  offensively  unpleasant  warrants  legislative  regula- 
tion of  the  matter.     Nuisances  have  from  time  to  time  im- 
memorial been  subject  to  legal  control,  and  the  mere  fact 
that  conduct  is  unpleasant,  irrespective  of  injury  to  either 
health  or  property,  has  constituted  cause  for  controlling  it 
either  by  legislation  or  action  of  the  courts.    Thus  noise  may 
be  controlled  and  unwholesome  stenches  may  be  enjoined. 
It  is  a  matter  of  record  that  the  courts  have  issued  as  many 
injunctions  against  the  emission  of  gases  from  manufactur- 
ing establishments  which  injured  vegetation  as  against  any 
other   kind   of   nuisance.     The   smoke   nuisance    resulting 
from  the  improper  handling  of  automobiles  is  on  a  par  with 
gas  nuisances  generally,  and  legislative  action  is  not  only 
proper  but  legally  warranted. 

In  England  the  lavv  prohibits  the  emission  of  offensive 
smoke  or  odors  from  automobiles,  and  several  automobile 
drivers  have  been  prosecuted  and  fined  for  violating  the 
law.     In  America  we  have  practically  no  legislation  on  the 


302  THE  LAW  OF  AUTOMOBILES. 

subject,  except  the  recently  passed  ordinance  of  the  Park 
Board  of  New  York  city.* 


2.  For  an  Engilisli  oaae  concerning  prosecutions  for  the  smoke 

nuisance  caused   by   an   automobile,   see  Star  Omnibus  Co.,  London 
(Limited)  v.  Tagg  (Div.  Ct) 


CHAPTER  XXVI. 

FEDERAL  CONTROL  OVER  MOTORING. 

Sec.  1.  In  general. 

2.  Powers  of  state  and  federal  governments. 

3.  Regulation  of  internal  matters  belongs  to  state. 

4.  Interstate  motoring. 

5.  The  right  of  transit. 

§  1.  In  general. 

The  question  has  been  raised  in  the  minds  of  many 
whether  or  not  the  United  States  government  should,  to 
any  extent,  control  the  operation  of  automobiles  and  seek 
to  take  the  matter  out  of  the  hands  of  the  states.  This 
question  naturally  arises  from  a  consideration  of  the  adverse 
attitude  which  some  of  the  state  legislators  have  taken  in 
reference  to  the  automobile.  The  advisability  of  Congress 
to  control  interstate  motoring  does  not  depend  upon  any 
action  the  state  might  take  in  regulating  the  automobiling 
within  its  borders. 

§  2.  Powers  of  state  and  federal  governments. 

It  is  not  so  much  a  question  whether  the  United  States 
should  control  the  operation  of  the  motor  vehicles  as 
whether  the  federal  government  really  possesses  the  power 
to  act  in  the  matter.  It  must  not  be  forgotten  that  in 
this  country  there  are  two  distinct  sovereignties — two 
governments — that  of  the  state  and  that  of  the  United 
States.     Each  government  is  distinct  and  independent  of 

[303] 


304:  THE  LAW  OF  AUTOMOBILES. 

the  other  in  many  matters.  There  are  certain  things  that 
the  United  States  government  cannot  do  which  affect  the 
state,  and  there  are  matters  the  state  has  no  control  over 
which  affect  the  United  States. 

§  3.  Regulation  of  internal  matters  belongs  to  state. 

The  regulation  of  the  use  of  internal  highways  is  a 
matter  which  belongs  exclusively  to  the  state  government. 
It  is  a  matter  of  purely  internal  concern  and  comes  under 
the  state's  power  to  pass  regulations  protecting  the  public 
from  danger  in  the  operation  of  vehicles  on  the  highways. 
Over  these  state  internal  police  matters  the  United  States 
has  no  control  at  all ;  and  in  so  far  as  motoring  is  confined 
exclusively  within  the  jurisdiction  of  the  state  Congress 
cannot  act. 

§  4.  Interstate  motoring. 

Where,  however,  automobiling  is  interstate,  that  is,  where 
the  motorist  passes  from  one  state  into  another,  the  federal 
government  is  given  jurisdiction  over  such  travel  by  the 
United  States  Constitution  not  by  the  commerce  clause 
necessarily.  The  United  States  has  jurisdiction  to  control 
interstate  commerce,  and  interstate  commerce  possiblv  may 
include  interstate  pleasure  travel  by  means  of  the  motor  car 
but  the  author  doubts  this.  Action  by  the  United  States 
in  respect  to  interstate  motoring,  however,  would  not 
prevent  the  states  from  regulating  automobile  travel  within 
their  own  domains.  This  right  is  granted  the  states  by  the 
Constitution  and  could  not  be  taken  from  them  by  any  act 
of  Congress. 

There  is  a  question  in  regard  to  the  power  of  Congress 
to  regulate  interstate  automobiling,  and  that  is,  Does 
interstate  travel  for  pleasure,  such  as  interstate  automobil- 
ing generally  is,  constitute  interstate  commerce  within  the 


FEDERAL  CONTROL  OVER  MOTORING.       305 

meaning  of  the  United  States  Constitution,  granting  to 
Congress  the  exclusive  control  thereof?  This  question 
leads  us  to  ask  what  commerce  is.  Ordinarily  commerce 
consists  of  "  commercial  intercourse."  It  must  be  conceded 
that  interstate  travel  for  pleasure  and  recreation  does  not 
savor  of  anything  commercial.  It  is  not  business.  It  is 
pleasure  and  recreation,  and  nothing  more.  Of  course,  in- 
terstate travel  carried  on  by  automobiles  used  for  commer- 
cial purposes,  such,  for  example,  as  the  public  carrying  of 
passengers  and  goods,  without  question  constitutes  inter- 
state commerce.  The  greater  amount  of  interstate  automo- 
bile travel,  however,  is  for  the  purpose  of  pleasure  and 
recreation.  Business  and  pecuniary  gain  have  no  connec- 
tion with  it. 

The  idea  that  Congress  may  possess  the  power  to  pass 
regulations  controlling  interstate  automobiling  is  not  by  any 
means  a  new  one.  There  can  be  no  question  as  to  Congress' 
power.  Whether  the  travel  be  by  steam  railroad,  trolley 
car,  vessel,  automobile,  bicycle  or  on  foot,  if  it  consists 
of  the  passage  of  either  persons,  animals  or  goods  from  one 
state  into  another,  across  the  boundary  line  of  any  two 
states,  then  the  travel  may  constitute  interstate  commerce 
provided  there  exists  a  commercial  purpose.  People  who, 
for  commercial  gain  or  commerical  purposes,  walk  across 
a  bridge  which  spans  a  river  between  two  states  may  be 
said  to  carry  on  interstate  commerce,  and  Congress 
possesses  plenary  power  to  regulate  this  travel.  But  if  a 
valid,  just  and  non-discriminating  law  is  to  be  enacted,  the 
form  in  which  the  bill  is  framed  and  the  method  of  pro- 
cedure of  its  supporters  are  of  paramount  importance. 
Direct  legislation  will  not  do. 

Manifestly  the  flying  of  a  kite  or  the  throwing  of  a  stone 
across   the  boundary   of  two   states  would  not  constitute 
interstate  commerce.     The  passage  of  telegraph  and  tele- 
20 


306  THE  LAW  OF  AUTOMOBILES. 

phone  messages,  however,  has  been  held  to  come  within  the 
commerce  clause  of  the  Constitution,  and  the  kind  of 
messages,  whether  concerning  business,  pleasure  or  what 
not,  makes  no  difference  according  to  the  decisions.  It 
must  be  admitted  that  in  the  case  of  the  automobile  we  have 
the  following  elements  of  interstate  commerce,  excepting 
the  fifth: 

1.  A  means  of  travel. 

2.  Actual  travel  or  traffic. 

3.  A  means  of,  and  actual  travel,  which  will  satisfactorily 
carry  and  convey  people  and  freight. 

4.  Interstate  travel  or  traffic. 

5.  Business  or  commercial  purpose  of  travel. 

Does  the  purpose  or  object  of  all  this  automobile  travel 
have  any  bearing  on  the  question  as  to  whether  it  constitutes 
commerce  ?  This  is  the  only  question  which  must  be 
decided  before  Congress*  authority  to  legislate  on  the  sub- 
ject is  established.  We  will  examine,  therefore,  into  the 
meaning  of  the  term  commerce  and  ascertain  if  the  travel 
must  in  some  way  be  connected  or  related  to  business,  trade 
or  gain. 

"Commerce"  is  defined  in  the  famous  case  of  Gibbons 
V.  Ogden,  22  U.  S.  (9  Wheat.)  to  mean  not  only  traffic 
but  also  intercourse,  and  it  is  said  in  McNaughton  Company 
V.  McGirl,  49  Pac.  Rep.,  651,  that  commerce  is  traffic,  but 
it  is  something  more — it  is  intercourse.  The  transporta- 
tion of  passengers  is  a  part  of  commerce.  Passenger 
Cases,  48  U.  S.  (7  How.),  283.  Commerce  is  traffic,  but 
it  is  much  more.  It  embraces  also  transportation  by  land 
and  water,  and  all  the  means  and  appliances  necessarily 
employed  in  carrying  it  on.  Chicago  &  N.  W.  R.  R.  Co. 
V.  Fuller,  84  U.  S.  (17  Wall),  560.  The  term  "com- 
merce "  in  its  broadest  acceptation  includes  not  merely  traffic 
but    the   means    and    vehicles   by   which    it    is   prosecuted. 


FEDERAL  CONTROL  OVER  MOTORING.  307 

Winder  v.  Caldwell,  55  U.  S.  (14  How.),  434.  The  term 
embraces  all  instruments  by  which  commerce  may  be  con- 
ducted. Trademark  Cases,  100  U.  S.,  82.  But  it  is 
well  settled  that  insurance  is  not  commerce,  and  logs  which 
are  floating  down  a  river  uncontrolled  are  not  an  element 
of  commerce.  Harrigan  v.  Connecticut  River  Lumber 
Company,  129  Mass.,  500. 

In  Pensacola  Tel.  Company  v.  Western  Union  Tel.  Com- 
pany, 96  U.  S.,  I,  we  have  the  following  enumeration  of 
agencies  of  travel  which  may  be  engaged  in  interstate  travel, 
and  the  enumeration  is  made  in  the  order  of  improved 
means  of  transit.  The  court  begins  with  the  horse,  men- 
tions the  stage  coach,  sailing  vessel,  steamboat,  railroad, 
and  ends  with  the  telegraph.  If  automobiles  had  then 
been  in  use  they  might  have  been  included  if  used  com- 
mercially. 

In  view  of  the  recent  attempt  to  have  Congress  to  con- 
sider favorably  a  Federal  automobile  registration  law,  the 
following  decision  is  of  interest : 

In  United  States  v.  Colorado  &  N.  W.  R,  R.,  decided  by 
the  United  States  Circuit  Court  of  Appeals,  Eighth  Circuit 
(November,  1907,  157  Fed.,  321.).  The  following  is 
from  the  syllabus  by  the  court : 

The  safety  appliance  acts  (acts  March  2,  1893,  chap. 
196,  2";  Stat.,  531,  amended  by  act  April  i,  1896,  chap.  87, 
29  Stat.,  85,  U.  S.  Comp.  St.,  1901,  p.  3,  174,  and  act  March 
2,  1903,  chap.  976,  32  Stat.,  103,  U.  S.  Comp.  St.  Supp., 
1907,  p.  885),  apply  to  and  govern  a  railroad  company  en- 
gaged in  interstate  commerce  which  operates  entirely 
within  a  single  state  independently  of  all  other  carriers. 

Every  part  of  every  transportation  of  articles  of  com- 
merce in  a  continuous  passage  from  a  commencement  in 
one  state  to  a  prescribed  destination  in  another  is  a  transac- 
tion of  interstate  commerce. 


308  THE  LAW  OF  AUTOMOBILES. 

Congress  may  lawfully  affect  interstate  commerce  so  far 
as  necessary  to  regulate  effectually  and  completely  inter- 
state commerce,  because  the  Constitution  reserved  to  Con- 
gress plenar\'  power  to  regulate  interstate  and  foreign  com- 
merce, and  the  Constitution  and  the  acts  of  Congress  in  pur- 
suance thereof  are  the  supreme  law  of  the  land. 

In  Lehigh  &  Wilkes-Barre  Coal  Co.  v.  Borough  of  Junc- 
tion, 68  At.  Rep.  806,  it  is  said :  "  While  interstate  com- 
merce necessarily  involves  interstate  transportation,  the  con- 
verse is  not  always  true.  A  railroad  or  ferry  company,  for 
example,  which  transports  persons  or  property  from  one 
state  to  another,  is  undoubtedly  engaged  in  interstate  com- 
merce, and  a  tax  by  the  state  upon  owners  of  vessels  or  com- 
mon carriers  so  transporting  persons  or  property  has  been 
held  void  as  a  regulation  of  commerce.  On  the  other  hand, 
transportation  may  be  conducted  without  constituting  com- 
merce or  traffic,  which  has  been  defined  to  be  the  exchange 
of  merchandise  between  individuals,  communities,  or  coun- 
tries, whether  directly  in  the  form  of  barter  or  by  the  use 
of  money  or  other  medium  of  exchange.  A  manufacturer 
who  sends  his  goods  manufactured  in  Connecticut  to  his 
own  entry  port  or  store  in  New  York  City,  transports  the 
products  from  one  state  to  another,  but  the  transaction  by 
such  owner  is  not  of  itself,  so  far  as  the  owner  is  concerned, 
interstate  commerce  in  the  sense  that  the  City  of  New  York 
has  no  power  to  tax  the  goods  thus  stored  and  awaiting 
sale  in  New  York,  although  the  merchandise  may  be  in- 
tended for  a  foreign  market.  The  transaction  lacks  the 
essential  element  of  trade,  namely,  sale  or  exchange. 

The  Supreme  Court  of  the  United  States  says,  concern- 
ing the  commerce  over  which  the  Federal  Government  has 
exclusive  control : 

"  Let  us  inquire  what  is  commerce,  the  power  to  regulate 
which  is  given  to  Congress?     This  question  has  been  fre- 


FEDERAL  CONTROL  OVER  MOTORING.       309 

quently  propounded  in  this  court,  and  the  answer  has  been 
— and  no  more  specific  answer  could  well  have  been  given — 
that  commerce  among  the  several  States  comprehends  traf- 
fic, intercourse,  trade,  navigation,  communication,  the  tran- 
sit of  persons,  and  the  transmission  of  messages  by  tele- 
graph— indeed,  every  species  of  commercial  intercourse 
among  the  several  States — but  not  that  commerce  'com- 
pletely internal,'  which  is  carried  on  between  man  and  man, 
in  a  State,  or  between  different  parts  of  the  same  State,  and 
which  does  not  extend  to  or  affect  other  States.  The  power 
to  regulate  governed.  Of  course,  as  has  been  often  said, 
Congress  has  a  large  discretion  in  the  selection  or  choice  of 
the  means  to  be  employed  in  the  regulation  of  interstate 
commerce,  and  such  discretion  is  not  to  be  interfered  with 
except  where  that  which  is  done  is  in  plain  violation  of  the 
Constitution.  *  *  *  Manifestly,  any  rule  prescribed 
for  the  conduct  of  interstate  commerce,  in  order  to  be  within 
the  competency  of  Congress  under  its  power  to  regulate 
commerce  among  the  States,  must  have  some  real  or  sub- 
stantial relation  to,  or  connection  with,  the  commerce  regu- 
lated."— Per  Mr.  Justice  Harlan,  in  Adair  v.  U.  S.,  28 
Supreme  Court  Reporter,  277,  p.  281,  decided  Jan.  27,  1908. 

It  is  the  opinion  of  the  writer  that  Congress  possesses  no 
power  to  take  cognizance  of  the  automobile  which  is  en- 
gaged in  interstate  travel  for  pleasure  merely,  by  legis- 
lation directly  regulating  that  kind  of  travel.  Hon.  Henry 
B.  Brown,  former  Associate  Justice  of  the  Supreme  Court 
of  the  United  States,  also  considers  Congress'  power  in 
this  respect  doubtful.  In  the  February,  1908,  number  of 
the  Yale  Law  Journal,  he  says,  concerning  the  automobile  : 

"  It  is  very  doubtful  *  *  *  Whether  the  interstate 
commerce  clause  of  the  Constitution  extends  to  private  car- 
riages not  engaged  in  regular  traffic  between  the  States, 
and  only  entering  them  occasionally  and  irregularly  for  the 


310  THE  LAW  OF  AUTOMOBILES. 

purposes  of  pleasure.  *  *  ♦  fhe  practice  of  rushing  to 
Congress  to  obtain  legislation  of  doubtful  validity  is  one 
which  ought  not  to  be  encouraged,  when  the  States  can 
afford  a  sufficient  remedy." 

The  writer  does  not  agree  with  Judge  Brown's  opinion, 
which  is  very  broad,  but  is  of  the  opinion  that  Congress 
may  regulate  interstate  automobiling  after  first  assuming 
jurisdiction  over  all  interstate  highways,  including  all  roads 
leading  into  them  and  used  for  interstate  travel.  Having 
first  taken  jurisdiction  of  the  interstate  thoroughfares  of 
travel.  Congress  may  then  regulate  any  kind  of  travel 
thereon,  no  matter  if  it  be  travel  for  pleasure,  for  to  do  so 
would  in  a  logical  sense  protect  the  travel  on  such  highways 
for  commercial  purposes.  This  is  the  foundation  of  the 
power  of  Congress  in  the  matter.  Congress  may  assume 
exclusive  jurisdiction  over  all  interstate  public  ways,  the 
same  as  it  has  done  over  the  waterways  of  the  United  States 
upon  which  commerce  and  navigation  are  carried  on.  This 
is  the  only  method  of  getting  at  the  root  of  Congress'  power 
to  regulate  interstate  non-commercial  travel  by  means  of 
automobiles. 

i  5.  The  right  of  tranait. 

Since  the  advent  of  the  new  means  of  transportation,  the 
automobile,  pleasure  driving  has  developed  wonderfully, 
throughout  the  United  States.  A  Saturday  or  Sunday 
afternoon  drive,  which  formerly  amounted  to  nothing  more 
extensive  than  traveling  a  distance  of  four  or  five  miles, 
may  now,  by  use  of  the  motor  vehicle,  consist  of  a  twenty- 
five  mile  ride,  and  across  the  line  into  another  state.  A 
whole  day's  automobile  drive  might,  in  some  instances,  take 
one  into  more  than  one  state  other  than  his  own. 

Distances  have  been  shortened  by  the  motor  vehicle,  cit- 
ies brought  closer  together  and  touring  through  the  country 


FEDERAL  CONTROL  OVER  MOTORING.       311 

necessitating  passage  over  and  across  several  and  many 
States  is  now  prevalent.  For  an  automobilist  to  suggest 
a  drive  between  the  cities  of  New  York  and  Philadelphia, 
for  example,  would  be  generally  looked  upon  as  a  short 
ride,  although  the  drive  requires  the  use  of  the  highways 
of  three  states.  Correctly  it  may  be  said  that  automobiling 
to-day  is  more  interstate  than  purely  local  within  any  one 
particular  state's  borders.  Rhode  Island  automobilists, 
probably  more  than  any  other  citizens,  realize  this,  since 
little  Rhodie  has  a  very  small  area  over  which  the  automo- 
bilist can  travel.  The  same  situation  exists  in  Delaware. 
Considering  the  nature  of  automobile  travel  and  its  dis- 
tinctive interstate  character,  it  is  naturally  a  question  para- 
mount in  the  minds  of  motorists  as  to  whether  the  various 
states  of  this  Union  possess  the  authority  to  enact  laws 
v/hich  require  non-resident  automobilists  coming  into  the 
state  to  pay  a  fee  which  is  in  the  nature  of  revenue.  In 
other  words,  can  revenue  be  collected  from  touring  auto- 
mobilists by  the  states  through  which  they  travel  ? 

United  States  citizenship. — In  considering  this  question, 
it  must  not  be  forgotten  that  the  United  States  of  America 
is  a  nation.  It  is  a  country  and  is  sovereign  within  its 
limits.  It  is  a  distinct  government  the  same  as  France  or 
Germany.  The  people  of  the  United  States  are  its  citizens. 
United  States  citizenship  carries  with  it  not  only  certain 
duties  and  responsibilities,  but  many  rights.  Some  of  these 
rights  are  inalienable,  others  are  not.  It  is  necessary  for  us 
to  start,  with  these  ideas  in  view,  in  order  properly  to  un- 
derstand the  status  of  a  United  States  citizen  who  wishes  to 
travel  across  the  country  by  means  of  a  private  carriage. 
We  are  apt  to  lose  sight  of  the  fact  that  there  is  a  larger 
and  more  important  government  here  than  that  of  the  state, 
although  a  state  is  sovereign  within  its  proper  sphere. 


312  THE  LAW  OF  AUTOMOBILES. 

Citizen's  right  of  transit. — The  question  which  we  wil! 
start  with  will  be  confined  to  mere  transit  from  one  state 
to  another  by  a  United  States  or  state  citizen.  Who  is  there 
that  can  deny  to  the  citizen  of  any  state  the  right  to  trans- 
port himself  from  one  state  to  the  one  adjoining?  He  may 
either  walk,  ride  behind  or  on  a  horse,  be  carried  by  an  auto- 
mobile, sailing  or  power  vessel,  railroad  train  and  possibly 
a  flying  machine,  wihout  being  compelled  to  pay  one  penny 
for  the  privilege  of  so  doing.  It  is  the  citizen's  inalienable 
right  to  be  allowed  to  enter  another  state,  to  choose  another 
domicile,  and,  if  he  desires,  to  constantly  pass  and  re-pass 
from  one  state  into  another.  "  Liberty  "  which  is  guaran- 
teed by  the  Federal  Constitution  to  the  people  of  the  various 
states  not  only  secures  this  right,  but  the  general  funda- 
mental principles  of  constitutional  government  give  to  the 
citizen  the  right  of  transit  from  state  to  state.  We  will,  if 
you  please,  confine  the  above  assertion  to  transit  unaccom- 
panied by  any  contrivance  such  as  the  automobile. 

Transit  of  vehicle. — Being  convinced  that  transit  of  per- 
sons cannot  be  obstructed  by  the  state,  let  us  ask  if  there 
can  be  any  restrictions  placed  upon  transit  carried  on  by  a 
mechanical  contrivance  of  admitted  dangerous  character- 
istics. At  the  outset  let  it  be  said  that  the  automobile  is  not 
dangerous  per  se.  This  has  been  held  to  be  the  law  in  sev- 
eral recent  cases  decided  by  the  highest  courts  in  this  coun- 
try. However,  it  must  be  admitted  that  there  are  certain 
dangers  connected  with  the  operation  of  automobiles,  which 
are  not  experienced  in  driving  horse-drawn  vehicles  on  the 
public  highways.  Therefore,  the  state  possesses  the  author- 
ity under  its  police  powers  to  regulate  automobiling.  to  pre- 
scribe speed  limits  and  to  require  drivers  and  owners  of 
motor  vehicles  to  become  registered  or  licensed.  It  is 
necessary,  in  order  to  regulate  automobiling,  to  pay  the 
expenses  of  the  department  issuing  licenses  and  registering 


FEDERAL  CONTROL  OVER  MOTORING.       313 

drivers  and  owners  of  automobiles.  These  expenses  natu- 
rally should  be  met  by  the  class  of  persons  regulated  and 
licensed.  No  quarrel  can  be  picked  with  any  of  the  states 
because  the  support  of  the  motor  vehicle  departments  is 
placed  upon  the  shoulders  of  automobilists.  But  the  amount 
of  the  fees  charged  is  limited  by  law,  by  the  United  States 
Constitution  and  the  common  law  as  found  in  American 
judicial  decisions. 

Limitation  on  license  fees. — It  is  a  well  settled  principle 
of  the  law  governing  license  fees  and  occupation  or  privi- 
lege taxes  that  the  sum  charged  for  the  license  must  not  be 
unreasonable  and  so  large  as  to  make  the  act  performed 
virtually  prohibited.  The  rule  lays  it  down  that  the  reason- 
ableness of  the  sum  is  to  be  determined  according  to  what 
the  expenses  are  incident  to  issuing  licenses  and  maintain- 
ing the  department  in  its  activities.  If,  therefore,  the  fee 
charged  for  registering  an  automobile  or  a  motor  vehicle 
driver  is  reasonable  according  to  the  standards  just  men- 
tioned, then  it  is  a  just  and  legal  exaction,  otherwise  it  is 
not. 

Just  exactly  why  a  $2.00  fee  is  requisite,  and  amply 
sufficient  in  the  State  of  New  York  for  the  registration  of 
an  automobile  by  an  owner  which  gives  him  a  license  to 
drive  on  the  public  highways,  while  a  $10.00  annual  fee 
in  New  Jersey  is  charged  under  the  same  conditions,  plus 
$4.00  every  year  for  the  privilege  to  drive,  cannot  be  ex- 
plained otherwise  than  by  saying  that  the  New  Jersey  law 
is  unjust  and  illegal,  considering  what  the  law  is  in  the 
United  States  governing  the  legality  of  license  regulation. 

Questions  of  interstate  commerce  not  in  issue. — That 
the  state  cannot  tax  interstate  commerce  is  forever  settled; 
so  we  need  not  dwell  upon  that  phase  of  the  question. 
Moreover,  it  is  extremely  doubtful  if  travel  for  pleasure  is 
commerce  within  the  meaning  of  the  Federal  limitation. 


314  THE  LAW  OF  AUTOMOBILES. 

We  do  not  need  to  consider  the  commerce  feature  of  in- 
terstate travel  any  longer,  and  the  surprise  is  great  that 
heretofore  the  inviolability  of  the  correlative  right  of  tran- 
sit has  not  been  advocated.  No  matter  if  the  travel  is  by 
rail  or  automobile,  interstate  transit  can  no  more  rightfully 
be  taxed  than  interstate  commerce.  Here  is  a  new  phase  of 
interstate  communication  for  the  judiciary  to  deal  with,  yet 
it  is  very  old.  so  old  that  it  has  nearly  been  forgotten.  We 
first  heard  of  this  right  of  transit  in  1867.  Crandall  v. 
Nevada,  6  Wallace  (U.  S.  Rep.)  35. 

The  case  of  Crandall  v.  Nevada,  6  Wallace  (United 
States  Reports)  35,  held  that  a  state  cannot  tax  the  right  of 
transit  through  the  states  by  the  ordinary  means  of  travel. 
The  opinion  of  the  Court  in  this  case  was  written  by  Mr. 
Justice  Miller,  and  is  in  part  as  follows : 

"  The  people  of  the  United  States  constitute  one  nation. 
They  have  a  government  in  which  all  of  them  are  deeply- 
interested.  This  government  has  necessarily  a  capitol  es- 
tablished by  law,  where  its  principal  operations  are  con- 
ducted. Here  sits  its  legislature,  composed  of  senators 
and  representatives,  from  the  states  and  from  the  people  of 
the  states.  Here  resides  the  President,  directing  through 
thousands  of  agents,  the  execution  of  the  laws  over  all  this 
vast  country.  Here  is  the  seat  of  the  supreme  judicial 
power  of  the  nation,  to  which  all  its  citizens  have  a  right  to 
resort  to  claim  justice  at  its  hands.  Here  are  the  great 
executive  departments,  administering  the  offices  of  the 
mails,  of  the  public  lands,  of  the  collection  and  distribution 
of  the  public  revenues,  and  of  our  foreign  relations.  These 
are  all  established  and  conducted  under  the  admitted  powers 
of  the  Federal  government. 

"  That  government  has  a  right  to  call  to  this  point  any  or 
all  of  its  citizens  to  aid  in  its  service,  as  members  of  the 
congress,  of  the  courts,  of  the  executive  departments,  and  to 


FEDERAL  CONTROL  OVER  MOTORING.       3^5 

fill  all  its  other  offices;  and  this  right  cannot  be  made  to 
depend  upon  the  pleasure  of  a  state  over  whose  territory 
they  must  pass  to  reach  the  point  where  these  services  must 
be  rendered. 

"  The  government,  also,  has  its  offices  of  secondary  im- 
portance in  all  other  parts  of  the  country.  On  the  seacoasts 
and  on  the  rivers  it  has  its  ports  of  entry.  In  the  interior 
it  has  its  land  offices,  and  its  sub-treasuries.  In  all  these  it 
demands  the  services  of  its  citizens,  and  is  entitled  to  bring- 
them  to  close  points  from  all  quarters  of  the  nation,  and  no 
power  can  exist  in  a  state  to  obstruct  this  right  that  would 
enable  it  to  defeat  the  purposes  for  which  the  government 
was  established. 

"  The  Federal  power  has  a  right  to  declare  and  prosecute 
wars,  and,  as  a  necessary  incident,  to  raise  and  transport 
troops  through  and  over  the  territory  of  any  state  of  the 
Union. 

"  If  this  right  is  dependent  in  any  sense,  however  limited, 
upon  the  pleasure  of  a  state,  the  government  itself  may  be 
overthrown  by  an  obstruction  to  its  exercise     *     *     * 

The  correlative  right  of  transit.—  "  But  if  the  govern- 
ment has  these  rights  on  her  own  account,  the  citizen  also 
has  correlative  rights.  He  has  the  right  to  come  to  the 
seat  of  government  to  assert  any  claim  he  may  have  upon 
the  government,  or  to  transact  any  business  he  may  have 
with  it,  to  seek  its  protection,  to  share  its  offices,  to  en- 
gage in  administering  its  functions.  He  has  a  right  to 
free  access  to  its  seaports  through  which  all  the  oper- 
ations of  foreign  trade  and  commerce  are  conducted, 
to  the  sub-treasuries,  the  land  offices,  the  revenue  offices, 
and  the  courts  of  justice  in  the  several  states,  and  this  right 
is  in  its  nature  independent  of  the  will  of  any  state  over 
whose  soil  he  must  pass  in  the  exercise  of  it. 


316  THE  LAW  OF  AUTOMOBILES. 

"  The  views  here  advanced  are  neither  novel  nor  unsup- 
ported by  authority.  The  question  of  the  taxing  power  of 
the  states,  as  its  exercise  has  affected  the  functions  of  the 
Federal  government,  has  been  repeatedly  considered  by  this 
Court,  and  the  right  of  the  states  to  impede  or  embarrass 
the  constitutional  operations  of  that  government,  or  the 
rights  Zi'hich  its  citizens  hold  under  it,  has  been  uniformly 
denied." 

In  the  opinion  of  the  court  the  famous  case  of  McCulloch 
V.  Maryland,  4  Wheaton  (U.  S.)  316  was  commented  on 
and  the  remarks  of  Chief  Justice  Marshall,  "  that  the  power 
to  tax  involves  the  power  to  destroy  "  were  given  promi- 
nence. Given  the  power  to  tax,  the  extent  is  unlimited. 
If  a  tax  of  one  dollar  is  legal,  a  thousand  dollar  tax  would 
be  lawful. 

The  Court  adopted  and  approved  of  the  views  expressed 
in  the  Passenger  Cases,  as  follows : 

"  Living  as  we  do  under  a  common  government,  charged 
with  the  great  concerns  of  the  whole  Union,  every  citizen 
of  the  United  States  from  the  most  remote  states  or  terri- 
tories, is  entitled  to  free  access,  not  only  to  the  principal 
departments  established  at  Washington,  but  also  to  its  judi- 
cial tribunals  and  public  ofifices  in  every  state  in  the  Union. 
For  all  the  great  purposes  for  which  the  Federal  govern- 
ment was  formed,  zve  are  one  people,  zi'ith  one  common 
country." 

"  We  are  citizens  of  the  United  States,  and  as  members 
of  the  same  community,  must  have  the  right  to  pass  and  re- 
pass through  every  part  of  it  without  interruption,  as  freely 
as  in  our  own  states." 

"  And  a  tax  imposed  by  a  state  for  entering  its  territories 
or  harbors,  is  inconsistent  with  the  rights  which  belong  to 
citizens  of  other  states  as  members  of  the  Union,  and  with 
the  objects  which  that  Union  was  intended  to  attain,  such  a 


FEDERAL  CONTROL  OVER  MOTORING.       317 

power  in  the  states  could  produce  nothing  but  discord  and 
mutual  irritation,  and  they  very  clearly  do  not  possess  it." 

The  automobile  is  an  ordinary  mode  of  travel The 

automobile  is  now  a  common  and  ordinary  mode  of  inter- 
state travel.  There  can  be  no  question  about  this.  Cran- 
dall  V.  Nevada,  it  will  be  particularly  noticed,  held  that 
the  state  cannot  tax  transit  carried  on  by  the  ordinary 
modes  of  travel.  Interstate  automobile  travel  clearly  comes 
within  the  ruling  of  the  court  in  this  case;  consequently  it 
cannot  constitutionally  be  taxed. 


TABLE  OF  OASES  CITED. 


TABLE  OF  CASES  CITED. 


[References  are  to  pages.] 

A. 

PAGE. 

Acker  v.  Anderson  County,  20  S.  Car.  495 95 

Alabama  Great  Southern  R.  Co.  v.  Hall,  105  Ala.  599,  17  So.  Rep. 

176    152 

Allen  V.  Mackay,  1  Sprague  (U.  S.)   219 91 

Allen  V.  Tunbridge,  L.  R.  6  C.  P.  481 272 

Altenkirck  v.  National  Biscuit  Company,  111  N.  Y.  Supp.  284.109,  125 

Angell  V.  Lewis,  20  R.  I.  391,  39  Atl.  Rep.  521 93,  113,  122,  123 

Arkansas  &  L.  R.  v.  Sanders,  81  Ark.  604,  99  S.  W.  Rep.  1109. ...  161 

Arseneau  v.  Sweet,  119  N.  Y.  46 111.  141 

Atlantic  City  v.  Fousler,  70  N.  J.  Law  125,  56  Atl.  Rep.  119 274 

Avegno  v.  Hart,  35  La.  Ann.  235 94 

B. 

Bailey  v.  Mayer,  107  N.  Y,  Supp.  624,  56  Misc.  Rep.  331 253 

Baker  v.  Fall  River,  187  Mass.  53,  72  N.  E.  Rep.  336.  .8,  10,  104, 

105    292 

Bastable  v.  Little,  Div.  Ct.  59 170 

Beecroft  v.  Van  Schaick,  104  N.  Y.  Supp.  458 285,  286 

Belk  V.  People,  125  111.  584,  17  N.  B.  744 96 

Belles  V.  Kellner,  51  Atl.  Rep.  700,  67  N.  J.  Law,  255,  57  L.  R.  A. 

627   131 

321 


302  TABLE  OF  CASES  CITED. 

[References  are  to  pages.] 

PAGE. 

Belleveau  v.  Lowe  Supply  Co.,  86  N.  E.  Rep.  301 115,  145 

Bennett  v.  Busch,  67  Atl.  Rep.  188 243 

Berman  v.  Schultz,  40  Misc.  (N.  Y.)  212,  84  N.  Y.  Supp.  292.  .101.  232 

Bertees  v.  The  Laurel  Run  Tp.  Co..  15  Pa.  Dist.  Rep.  94 54 

Best  V.  Bauder,  29  How.  Prac.   (N.  Y.)   489 274 

Bird  V.  Everard,  4  Misc.  (N.  Y.)  104,  23  N.  Y.  Supp.  1008 211 

Black  V.  Burlington,  etc..  R,  Co.  38  Iowa  515 152 

Bohan  v.  Metropolitan  Express  Co.,  107  N.  Y.  Supp.  530 249 

Bolton  V.  Colder,  1  Watts.  (Pa.)  360 94 

Bowes  V.  Hopkins,  28  C.  C.  A.  524.  84  Fed.  Rep.  767 150 

Bowser  v.  Wellington,  126  Mass.  391 147 

Braverman  v.  Hart,  105  N.  Y.  Supp.  296  248.  250 

Brazier  v.  Philadelphia,  15  Pa.  Dist.  Rep.  14  64 

Brenan  v.  Met.  St.  R.  Co.,  60  N.  Y.  App.  Div.  264,  69  N.  Y.  Supp. 


1025 


156 


Brendon  v.  Warley,  28  N.  Y.  Supp.  557.  8  Misc.  Rep.  253 14 

Brewster  V.  Barker.  113  N.  Y.  Supp.  1026 113.  141,  142,  147 

Bridgman  v.  Town  of  Hardwick,  31  At.  Rep.  33.  34.  67  Vt.  132. .     40 

Brooks  V.  Hart,  14  N.  H.  307 91,  92.     95 

Broschart  v.  Tuttle,  59  Conn.  120,  21  Atl.  Rep.  925.  11  L.  R.  A. 


33 


222 


Brown  v.  Swanton,  69  Vt.  53.  37  Atl.  Rep.  280 151 

Buffalo   V.    I^wis,   123    N.    Y.   App.    163.    108    N.    Y.    Supp.    450. 

affirmed  N.  Y.  Law  Journal,  June  1,  1908 68 

Buford  V.  Sims,  67  L.  J.  A.  B.  655  [1898]  2  A.  B.  641 168 

Burdick  v.  Worrall,  4  Barb.   ( N.  Y. )    596 93 

Burnham  v.  Central  Automobile  Exchange,  67  Atl.  Rep.  429 244 

Buscher  v.  N.  Y.  Transp.  Co..  94  N.  Y.  Supp.  798 96.  232 

Bush  V.  Fourcher,  3  Ga.  App.  43.  59  S.  E.  Rep.  459 247 

Butterfield  v.  Boyd.  4  Blatchf.   (U.  S.)    356 95 

Buxton  V.  Ainsworth,  101  N.  W.  Rep.  817.  11  Det.  Leg.  N.  684.  .91. 

92.     93 


TABLE  OF  CASES  CITED.  323 

[References  are  to  pages.] 


c. 

PA.QE. 

Cahill  V.  District  of  Columbia.  23  Wash.  L.  Rep.  759 209 

Campbell  v.  St.  Louis,  etc.,  R.  Co.,  175  Mo.  161,  75  S.  W.  Rep.  86. .  156 

Canfield  v.  N.  Y.  Transp.  Co.,  112  N.  Y.  Supp.  854 114 

Cannon  v.  Pittsburg,  etc.,  B.  T.  Co.,  195  Pa.  St.  159,  44  Atl.  Rep. 

1089 ^^'^ 

Carli  V.  Stillwater  St.  Ry.  &  Transfer  Co.,  28  Minn.  373.  41  Am. 

Rep.  290,  10  N.  W.  Rep.  205 22,     43 

Carpenter  v.  Cook,  30  Atl.  Rep.  998,  999,  67  Vt.  102 40 

Carsley  v.  White,  21  Pick.  (Mass.)  234 95 

Carter  v.  Northwestern  Tel.  Exch.  Co.,  63  N.  W.  Rep.  Ill,  60 

Minn.  539,  28  L.  R.  A.  310,  51  Am.  Rep.  543 32,     42 

Cassedy  v.  Stockbridge,  21  Vt.  391 95 

Cedar  Rapids  Auto  &  Supply  Co.  v.  Jeffery  &  Co.,  116  N.  W.  Rep. 

1054    122.  288 

Chadbourne  v.  Springfield  Street  Ry.,  85  N.  E.  Rep.  737 119 

Chaplin  v.  Hawes,  3  Car.  &  P.  555 95 

Chicago  V.  Banker,  112  111.  App.  94 22,     84 

Chicago  &  N.  W.  R.  R.  Co.  v.  Fuller,  84  W.  S.  (17  Wall.)  560. .  306 

Chicago,  etc.,  Co.  v.  Clark,  26  Neb.  645,  42  N.  W.  Rep.  703 153 

Chicago,  etc.,  R.  Co.  v.  Gunderson,  174  111.  495,  51  N.  E.  Rep. 


708 


153 


Chittenden  v.  Columbus,  26  Ohio  Cir.  Ct.  531 34 

Christie  v.  Elliott,  216  111.  48,  L.  R.  A.  (N.  S.)  124,  74  N.  E.  Rep. 

1035  84,  87,  102,  230 

City  of  Bellington  v.  Cissna,  44  Wash.  397,  87  Pac.  Rep.  481 74 

City  of  Oswego  v.  Collins,  38  Hun.  (N.  Y.)  17 272 

Claflin  V.  Meyer,  75  N.  Y.  250,  262 211 

Clark  V.  Buckmobile  Co.,  107  N.  Y.  App.  Div.  120 226 

Clark  V.  Com.,  4  Pick.  (Mass.)  125 90 

Clay  V.  Wood,  5  Esp.  44 95 

Collard  v.  Beach,  81  N.  Y.  App.  Div.  582,  81  N.  Y.  Supp.  619....  227 


324  TABLE  OF  CASES  CITED. 

[References  are  to  pages.] 

PAGE. 

Colo.,  etc.,  R.  R.  Co.  v.  Robbins,  71  Pac.  Rep.  871 154 

Collier  v.    Chaplin,   U.    P.,   C.    P.,   Cor.    Byles,   J.,   Westminster 

Feb.  1,  1865,  Oliphanfs  Law  of  Horses,  p.  283 Ill 

Collis  V.  Sheldon,  L.  R.  3  C.  P.  495.  37  N.  J.  C.  P.  233 257 

Com.  V.  Walton,  104  S.  W.  Rep.  323,  31  Ky.  L.  Rep.  916 4 

Com.  V.  Bacon,  24  Montg.  L.  Rep.  (Pa.)  197 167 

Com.  V.  Boyd,  188  Mass.  79,  74  N.  E.  Rep.  255 33 

Com.  V.  Crowninshield,  17  Mass.  225 102 

Com.  V.  David,  33  Pa.  Co.  Ct.  Rep.  12  77 

Com.  V.  Kingsbury,  85  N.  E.  Rep.  848 33 

Com.  V.  Rider,  29  Pa.  Super.  Ct.  621 56 

Com.  V.  Sherman,  191  Mass.  439,  78  N.  E.  Rep.  98 166 

Com.  V.  Templeton,  22  Montg.  Co.  L.  Rep.  203 77 

Coykendall  v.  Eaton,  55  Barb.  (N.  Y.)  188 211 

Com.  V.  Densmore,  29  Pa.  Co.  Ct.  Rep.  217 65 

Com.  V.  State.  68  Atl.  Rep.  602 110 

Com.  V.  Hawkins,  14  Pa.  Dist.  Rep.  502 10,     65 

Crandall  v.  Nevada,  6  Wall.   (U.  S.)   35   22,  27,  314 

Culberson  v.  Chicago,  etc.,  R.  Co.,  50  Mo.  App.  556,  562 155 

Cummings  v.  State,  112  N.  W.  Rep.  25 131 

Cunningham  v.  Castle,   127   N.   Y.  App.   Div.   Ill   N.  Y.   Supp. 

1057   29,  236,  250 

Cunningham  v.  Clay  Tp.,  76  Pac.  Rep.  907 104 

Currie  v.  Consolidated  Ry.  Co.,  71  Atl.  356 Ill,  143,  144 

D. 

Danforth  v.  Fisher,  71  Atl.  Rep.  535 247 

Daniels  v.   Clegg,  28  Mich.  32 95 

Daniel  v.  Clegg,  38  Mich.  32 92 

Davis  V.  Petrinovich,  112  Ala.  564,  21  So.  Rep.  344,  36  L.  R.  A. 

615     8,       9 

Davis  V.  Maxwell,  108  App.  Div.  128,  96  N.  Y.  Supp.  45 88 

Davis  &  Son  v.  Thornburg,  62  S.  E.  Rep.  1088 134 


TABLE  OF  CASES  CITED.  325 

[References  are  to  pages.] 

PAGE. 

Dean  v.  Sharon,  72  Conn.  667,  45  Atl.  Rep.  963 106 

Decision   of   the    Divisional   Court,    22    The   Times   L.    R.    556 

reversed  Harris  v.  Fiat  Motors  (Limited)   (C.  A.) 251 

Deming  v.  Johnson,  69  Atl.  Rep.  347 220 

Detroit,  etc.,  R,  Co.  v.  Steinburg,  17  Mich.  99 151 

Denny  v.  Stauss  &  Co.,  109  N.  Y.  Supp.  26 110 

Denver  v.  Utzler,  88  Pac.  Rep.  143 133 

Diocese  of  Trenton  v.  Toman,  70  Atl.  Rep.  606 10,  12,  205 

District  of  Columbia  v.  Weston,  23  App.  Cas.   (D.  C.)   363,  dis- 
tinguishing United  States  v.  Ross,  5  App.  Cas.  (D.  C.)  241. .  210 

Diehl  V.  Roberts,  134  Cal.  164,  66  Pac.  Rep.  202 90 

Doherty  v.  Town  of  Ayer,  83  N.  E.  Rep.  677 10,  11,  275,  994 

Doyle  V.  Wragg,  1  F.  &  F.  7 100 

Donovan  v.  Construction  Syndicate,  1  Q.  B.  629 280 

Doran  v.  Thomsen,  71  Atl.  Rep.  296 248 

Drake  v.  Mount,  33  N.  J.  L.  441 95 

Driscoll  V.  Towle,  181  Mass.  416 280 

Dunn  V.  Moratz,  92  111.  App.  277 90 

Du  Cros  V.  Lambourne,  Div.  Ct.  40 167 

Duter  V.  Sbaren,  81  Mo.  App.  612 100 

Dulien  v.  White,  2  K.  B.  669 98,    99 

E. 

Easring  v.  Lansingh,  7  Wend.   (N.  Y.)   185 89 

Eckels  V.  Muttschall,  82  N.  E.  Rep.  872 119,  160,  281 

Eclaigton,  etc.,  R.  Co.  v.  Hunter,  6  App.  Cas.  (D.  C.)   287 151 

Edgecomb  v.  His  Creditors,  19  Nev.  154 272 

Eichman  v.  Bucheit,  128  Wis.  385 110,  164 

Elenz  V.  Conrad,  123  Iowa  522,  99  N.  W.  138 94 

Emerson  Troy  Granite  Co.  v.  Pearson,  64  Atl.  Rep.  582 2,  7,     60 

Evans  v.  Fobs,  80  N.  E.  Rep.  587 206 

Evans  v.  A.  L.  Dyke  Automobile  Supply  Co.,  101  S.  W.  Rep. 
1152    246 


326  TABLE  OF  CASES  CITED. 

[References  are  to  pages.] 

PAOB. 

Ex  parte  Archy,  9  Cal.  164 16,    27 

Ex  parte  Berry,  82  Pac.  Rep.  44 36 

F. 

Fahrney  v.  O'Donnell,  107  111.  App.   608 92,  122 

Ferdin  v.  Cunningham,  20  How.  Prac.  (N.  Y.)   154 274 

Fisher  v.  Union  R.  Co.,  86  N.  Y.  App.  Div.  365,  83  N.  Y.  Supp. 

694    151 

Fletcher  v.  Dixon,  68  Atl.  Rep.  875 110,  132 

Flower  v.  Adam,  2  Taunt.  314 95 

Ford  V.  Whitman,  45  Atl.  Rep.  543 104 

Foot  V.  Am.  Produce  Co.,  195  Pa.  190,  49  L.  R.  A.  764 93 

Foley  V.  Ry.  Co.,  112  N.  Y.  App.  Div.  649 146 

Freel  v.  Wanamaker,  57  Atl.  Rep.  563,  208  Pa.  279 143 

French  v.  Holt.  53  Vt.  364 40 

Fredrickson   v.   Locomobile  Co.   of   America,   111   N.   W.   Rep. 

845 288,  289 

Ft.  Wayne  Cooperage  Co.  v.  Page,  82  N.  E.  Rep.  83 42 

G. 

Gage  V.  Callanan,  113  N.  Y.  Supp.  227 207 

Gage  V.  Callahan,  109  N.  Y.  Supp.  844 251 

Gagnier  v.  City  of  Fargo,  11  N.  D.  73,  88  N.  W.  Rep.  1030,  1031, 

95  Am.  St.  Rep.  705 9 

Galveston,  etc.,  R.  Co.  v.  Wesch,  21  S.  W.  Rep.  62 152,  154 

Gangawer  v.  Phila.,  etc.,  R.  Co.,  168  Pa.  St.  265,  32  Atl.  Rep.  21. .  154 
Gassenheimer  v.  Dlst.  of  Columbia,  26  App.  Car.  (D.  C.)  557.. 9  279 

Garske  v.  Ridgeville,  102  N.  W.  Rep.  22 106 

Gardner  v.  Wasco  County.  61  Pac.  Rep.  834 103 

Geiselman  v.  Schmidt,  68  Atl.  Rep.  202 107,  111,  114 


TABLE  OF  CASES  CITED.  327 

[References  are  to  pages.] 

PAGE. 

Gershel  v.  White's  EJxpress  Co.,  113  N.  Y.  Supp.  919 245 

Gilbert  v.  Burque,  10  L.  R.  Prob.  Div.  99 100 

Gilbert  v.  Burque,  57  At.  Rep.  927;  72  N.  H.  521 127 

Gillingham  v.  Ohio  River  R.  Co.,  35  W.  Va.  588,  14  S.  E.  Rep. 

243,  14  L.  R.  A.  798,  29  Am.  St.  Rep.  827 38 

Goldsmith  v.  State,  38  Tenn.  (1  Head)  154 164 

Goodes  V.  Lansing  &  Sub.  True.  Co.,  114  N.  W.  Rep.  338 162 

Graham  v.  Consol.  T.  Co.,  54  N.  J.  L.  10,  44  Atl.  Rep.  964 156 

Green  v.  McGrail,  48  N.  J.  Eq.  532,  22  Atl.  Rep.  582 155 

Grand  Rapids,  etc.,  R.  Co.  v.  Huntley,  38  Mich.  537,  31  Am.  Rep. 

321    154 

Gregory  v.  Slaughter,  99  S.  W.  Rep.  247 139 


H. 


Hainer  v.  Keeper  of  the  Prison,  N.  Y.  Law  Journal,  Oct.  31,  1907.  299 

Hair  v.  Ohio  Tp.,  62  Pac.  Rep.  1010 106 

Hannigan  v.  Wright,  63  Atl.  Rep.  234 141 

Harrigan  v.  Connecticut  River  Lumber  Co.,  129  Mass.  500 

Harrogate  Corporation  v.  MacKay,  Vol.  2,  L.  Rep.  K.  B.  Div.  1907.      2 

Harris  v.  Nubbs,  L.  R.  3  Exch.  Div.  268,  273 88 

Harris  v.  Uebelhoer,  75  N.  Y.  175 293 

Haywood  v.  Hamm,  58  Atl.  Rep.  695,  77  Conn.  158 133 

Heath  v.  Cook,  68  Atl.  Rep.  427 114 

Hebard  v.  Mabie,  98  111.  App.  543 97 

Hennessey  v.  Taylor,  189  Mass.  583 147 

Henry  v.  Klopfer,  147  Pa.  178 132 

Hickman  v.  Birch,  24  Q.  B.  Y.  172 272 

Hillhouse  v.  U.  S.  152  Fed.  Rep.  163 2 

Highland  Ave.,  etc.,  R.  Co.  v.  Sampson,  112  Ala.  425,  20  So.  Rep. 

566    151 

Hiroux  v.  Baum,  118  N.  W.  Rep.  533 244 

Hoppe  V.  Chicago,  etc.,  R.  Co.,  61  Wis.  357 156 


328  TABLE  OF  CASES  CITED. 

[References  aie  to  pages.] 

PAGE. 

Holland  v.  Bartch,  120  Ind.  46,  22  N.  E.  Rep.  83,  85,  16  Am.  St. 

Rep.    307 9,     46 

House  V.  Cramer.  112  N.  W.  Rep.  3 110,  129.  130 

Hubbell  V.  Yonkers,  104  N.  Y.  434 293 

Hunt  V.  Mayor.  109  N.  Y.  134 293 

Huntress  v.  Boston,  etc.,  R.  R.  Co.,  66  N.  H.  185,  34  Atl.  Rep.  154.  154 

I. 

In  re  Automobile  Acts,  15  Pa.  Dist.  Rep.  83 50,  63 

Indiana  Springs  Co.  v.  Brown,  165  Ind.  465,  74  N.  E.  Rep.  615, 

1  L.  R.  A.    (N.  S.)    238 21,  22 

Isaacs  V.  Wanamaker,  81  N.  E.  Rep.  763 288 

Indianapolis  St.  Ry.  v.  Hoffman,  82  S.  E.  Rep.  543 109 

111.  Cent.  R.  R.  Co.  v.  Ashline.  171  111.  313.  49  N.  E.  Rep.  521 153 

Irwin  V.  Judge,  71  Atl.  Rep.  573 143 

J. 

Jaquith  v.  Richardson,  8  Met.   (Mass.)   213 89.     90 

Jimeney  v.  San  Juan  Light  &  Transit  Co.,  3  Porto  Rico  Rep.  178.  110 

Jones  V.  Morgan,  90  N.  Y.  4,  9 211 

Jones  V.  Liverpool  Corporation.  14  Q.  B.  Div.  890 249 

Jones  V.  City  of  Williamsburg,  97  Va.  722,  34  S.  E.  Rep.  883,  47, 

L.  R.  A.  294    10 

Jones  V.  Hoge.  92  Pao.  Rep.  433 27,     30 

Johnson  v.  City  of  Marquette.  117  N.  W.  Rep.  658 134 

Johnson  v.  Oakland,  etc..  Elec.  R.  Co..  127  Cal.  608,  60  Pac.  Rep. 

170    152.  154 

Johnson  v.  Small,  5  B.  Mon.  (Ky.)  25  91,  100 

Johnson  v.  State,  58  S.  W.  Rep.  265 39 

John  M.  Hughes  Sons  Co.  v.  Bergen  &  West  Side  Automobile  Co., 

67   Atl.  Rep.   1018 243 


TABLE  OP  CASES  CITED.  329 

[References  are  to  pages.] 

PAGE. 

Joy  V.  Inhabitants  of  York,  99  Me.  237,  58  Atl.  Rep.  1059 106 

Julia  V.  McKinney,  3  Mo.  272 22,     27 

Judd  V.  Caledonia  Turnpike,  114  N.  W.  Rep.  346 130 

K. 

Kansas  City,  etc.,  R.  Co.  v.  Crocker,  95  Ala.  412,  11  So.  Rep.  262.  152 

Kathmeyer  v.  Mehl,  60  Atl,  Rep.  40 140 

Kelly  V.  Killourey,  81  Conn.  320 300 

Kennard  v.  Burton,  25  Me.  39,  43  Am.  Dec.  249 92 

Kennard  v.  Burton,  25  Me.  39 95 

Kersey  v.  Terre  Haute,  161  Ind.  471,  68  N.  E.  Rep.  1027 75 

King  V.  Grien,  94  Pac.  Rep.  777 142,  146 

Kokoll  V.  Brohm  &  Buhl  Lumber  Co.,  71  Atl.  Rep.  120 133 

L. 

Lacy  V.  Winn,  4  Pa.  Dist.  Rep.  409 46 

Laredo  Electric  &  Ry.  Co.  v.  Hamilton,  23  Tex.  Civ.  App.  480,  56 

S,  W.   Rep.   998,   1000 9,     10 

Larrabee  v.  Sewell,  66  Me.  376 95 

Laufer  v.  Bridgeport  Traction  Co.,  68  Conn.  475;   37  Atl.  Rep. 

379;    37  L.  R.  A.  533 Ill,  112 

Lampe  v.  Jacobson,  90  Pac.  Rep.  655 110 

Lawson  v.  Wells  Fargo  &  Co.,  113  N.  Y.  S.  647 Ill 

Lee  V.  Foley,  113  La.  663,  37  So.  Rep.  594 91,     92 

Lehman  v.  N.  Y.  City  Ry.  Co.,  107  N.  Y.  Supp.  561 146 

Lehigh  &  Wilkes-Barre  Coal  Co.  v.  Borough  of  Junction,  68  Atl. 

Rep.  806 308 

Lewis  V.  Armorus,  59  S.  E.  Rep.  338 244,  245,  251 

Little  V.  Hackett,  116  U.  S.  366 280 

Lorenz  v.  Tisdale,  111  N.  Y.  Supp.  175 126 

Long  V.  Nute,  100  S.  W.  Rep.  511 244 

Lotz  V.  Hanlon,  217  Penn.  St.  339,  66  Atl.  Rep.  525 245 


330  TABLE  OF  CASES  CITED. 

[References  are  to  pages.] 

PAGE. 

Louisville  &  N.  R.  Co.  v.  Armstrong,  105  S.  W.  Rep.  473 119 

Louisville,  etc.,  R.  Co.  v.  Jones,  108  Ind.  551,  9  N.  E.  Rep.  476..  151 

Lockwood  V.  Lockwood,  2  Curt.  Eccl.  281,  289, 158 

Losee  v.  Clute,  51  N.  Y.  494 257 

Lockhart  v.  Litchtenthaler,  46  Pa.  St.  151 152 

Lorenz  v.  Tisdale,  111  N.  Y.  Supp.  173 48 

Lydia  v.  Rankin,  2  A.  K.  Marsh  (Ky.),  820 27 


M. 

Matter  of  B..  Q.  C.  &  S.  R.  R.  Co.,  185  N.  Y.  171 71 

Matter  of  Troy  Press  Co.,  94  N.  Y.  App.  Div.  514,  affirmed  179 

N.  Y.  529  71 

Mayhew  v.  Sutton,  86  L.  T.  18 103 

Mallary  v.  Saratoga  Lake  Bridge  Co.,  104  N.  Y.  Supp.  1025.  53 

Misc.    Rep.    446 55,  275 

Mathieson  v.  Omaha  St.  R.  Co.,  3  Neb.  743,  92  N.  W.  Rep.  639.  151.  154 

Materson  v.  Short,  34  How.  Prac.  (N.  Y.),  481 270 

Macomber  v.  Nichols,  34  Mich.  212,  22  Am.  Rep.  522 22,     44 

May  V.  Allison.  30  Super.  50 141 

Mahoney  v.  Maxfield,  113  N.  W.  Rep.  904 136 

McFern  v.  Lardner,  97  S.  W.  Rep.  972 122,  123 

Mclntyre  v.  Omer,  166  Ind.  57 32,  112,  130 

McNaughton  v.  McGirl,  49  Pac.  Rep.  651 306 

McCulloch  V.  Maryland,  4  Wheat,  (U.  S.)  316 316 

McGourty  v.  DeMarco,  200  Man.  57 126,  147 

McCummins  v.  State,  112  N.  W.  Rep.  25 138 

McCormick  v.  Hesser,  71  Atl.  55 113,  141 

McLane  v.  Sharp,  2  Harr,   (Del.)   481 95 

McEnroe  v.  Taylor.  107  N.  Y.  Supp.  565 247 

McKillop  V.  Reich,  76  App.  Div.   (N.  Y.)   334.  335 211 

Mendelson  v.  Van  Renselaer,  103  N.  Y.  Supp.  578 126,  127 


TABLE  OF  CASES  CITED.  331 

[References  are  to  pages.] 

PAGE. 

Mertz  V.  Det.  Elec.  R.  Co.,  125  Mich.  11,  83  N.  W.  Rep.  1036 151 

Mercer  v.  Corbin.  117  Ind.  450.  20  N.  E.  Rep.  132,  134,  3  L.  R.  A. 

221,  10  Am.  St.  Rep.  76 ^ 

Meyer  v.  Hanck,  85  Iowa  319,  52  N.  W.  Rep.  235 229 

Merkl  V.  Jersey  City,  etc.,  Ry.  Co.,  68  Atl.  Rep.  74 142 

Miller  v  Boston  &  Northern  St.  Ry.,  197  Mass.  535,  83  N.  E.  Rep. 

990    120 

Mitchell  V.  Rochester  Ry.  Co.  151  N.  Y.  107 97.    98 

Miller  v.  Addison,  69  Md.  731,  54  Atl.  Rep.  967 112 

Miller  v.  Burke,  6  Daly  (N.  Y.)  171 274 

Mo.  Pac.  R.  Co.  V.  Hilderbrand,  52  Kan.  284,  34  Pac.  Rep.  738. .. .  156 
Monroe  v.  Hartford  St.  Ry.  Co.,  76  Conn.  201-206,  56  Atl.  Rep. 

498    221 

Moss  V.  Moore,  18  Johns,  (N.  Y.)  128 1* 

Moriarity  v.  Lewiston,  98  Me.  482,  57  Atl.  Rep.  790 104 

Moody  V.  Osgood,  54  N.  Y.  488 95 

Morley  v.  Consolidated  Mfg.  Co.,  81  N.  E.  Rep.  993 287 

Moses  V.  Pittsburgh,  etc.,  R.  Co.,  21  111.  515 44 

Munster  v.  Chicago,  etc.,  R.  Co.,  61  Wis.  325,  50  Am.  Rep.  141. .. .  154 

Muth  V.  St.  Louis,  etc.,  R.  Co.,  87  Mo.  App.  422 153 

Murdock  v.  Warwick,  4  Gray   (Mass.)   178 100 

Murphy  v.  Armstrong  Trans.  Co.,  167  Mass.  199 147 

Murphy  V.  Wait,  102  N.  Y.  App.  Div.  121.  92  N.  Y.  Supp.  253.  .36, 

85,     87 

Myers  v.  Hinds,  110  Mich.  300,  68  N.  W.  Rep.  156, 157,  33  L.  R.  A. 
356,  64  Am.  St  Rep.  345 9 


N. 

Nadeau  v.  Sawyer,  59  At.  Rep.  369;  73  N.  H.  70 109,  127 

Nason  v.  West,  61  N.  Y.  App.  Div.  160 22,    86 

Needy  v.  Littlejohn,  115  N.  W.  482 122,  123,  143 

Noakes  v.  N.  Y.  Cent,  etc.,  R.  Co.,  106  N.  Y.  Supp.  522 148 


232  TABLE  OF  CASES  CITED. 

[References  are  to  pages.] 

PAGE. 

Neal  V.  Rendall,  56  At.  Rep.  209;  98  Me.  69;  63  L.  R.  A.  668.  .91, 

121,  122 

Nesbit  V.  Crosby,  51  At.  Rep.  550;  74  Conn.  554 114 

N.  y.  Transp.  Co.  v.  Garside,  157  Fed.  Rep.  521.. 92,  95,  113,  122, 

140,  150 

O'Donoghue  v.  Moore,  (S.  J.  477,  L.  T.  35,  T.  495)  23  Law  Notes 

(Eng.)     171 10 

o. 

Odom  V.  Schmidt,  52  L.  Ann.  2129,  28  So.  350 101 

ODonnell  v.  O'Neil,  109  S.  W.  Rep.  815 47 

O'Hara  v.  Nelson,  63  Atl.  Rep.  836 206 

O'Malley  v.   Dorn,   7   Wis.   236 91 

Orr  V.  Oldtown,  99  Me.  190,  58  Atl.  Rep.  984 105 

P. 

Pabst  Brewing  Co.  v.  Rapid  Safety  Filter  Co.,  107  N.  Y.  Supp. 

163,  56  Misc.  Rep.  445 17 

Palmer  v.  Barker,  11  Me.  338 89,     91 

Palmer  v.  Mays,  80  Conn.  355,  68  Atl.  Rep.  369 222 

Parsons  v.  Wisner,  113  N.  Y.  Supp.  922 248,  250 

Parker  v.  Adams,  12  Met.   (Mass.)   403 91,  92,     95 

Passenger  Cases.  48  U.  S.   (7  How.)   283 306 

Patterson  v.  Kates,  150  Fed.  Rep.  481 246 

People  V.  McWilliams,  91  N.  Y.  App.  Div.  176,  84  N.  Y.  Supp.  357.  50 
People  V.  Keeper  of  Prison,  121  N.  Y.  App.  Dlv.  645,  106  N.  Y. 

Supp.  314.  affirmed  190  N.  Y.  315 68 

People  V.  Dow.  118  N.  W.  Rep.   745 112,  175 

People  V.  Schneider,  12  Det.  L.  N.  32,  69  L.  R.  A.  345,  103  N.  W. 

Rep.    172    37,     64 

People  V.  De  Groff,  56  Misc.   (N.  Y.)    429 204 

People  V.  Ellis.  N.  Y.  App.  Div.  471,  472 103 


TABLE  OF  CASES  CITED.  333 

[References  are  to  pages.] 

PAGE. 

Peoria  Bridge  Assoc,  v.  Loomis,  20  111.  235 95 

Perlstein  v.  Am.  Exp.  Co.,  177  Mass.  530 124 

Peters  v.  Cuneo,  108  N.  Y.  Supp.  264 122 

Perlstein  v.  American  Export  Co.,  177  Mass.  730,  59  N.  E.  Rep. 

194    93 

Pitcher  v.  Webber,  68  Atl.  Rep.  593 287 

Pittsburg  Southern  R.  Co.  v.  Taylor,  104  Pa.  306 95 

Pluckwell  V.  Wilson,  5  Carrington  &  Payne  (Eng.)   375 95,  122 

Plancq  v.  Marks,  K.  B.  D.,  94  L.  T.  577 160 

Pleickwell  v.  Wilson,  5  Carr.  &  Payne  103 92 

Porter  v.  Buckley,  147  Fed.  Rep.  140,  78  C.  C.  A.  138 151,  161 

Potter  V.  O'Donnell,  199  III.  119,  64  N.  E.  Rep.  1026 151 

Preston  v.  ^etna  Ins.  Co.,  193  N.  Y.  142 17 

Pratt  V.  Inhabitants  of  Cohasset,  177  Mass.  488,  59  N.  E.  Rep.  79.  106 
Pullman  v.  State,  88  Ala.  190,  7  So.  Rep.  148 40 

Quarman  v.  Burnett,  6  M.  &  W.  499 249 

Quigley  v.  Gorham,  5  Cal.  418,  63  Am.  Dec.  139 272 

K. 

Radnor  Tp.  v.  Bell,  27  Pa.  Super.  Ct.  1 89,  102 

Rathbun  v.  Payne,  19  Wend.  (N.  Y.)  399 95 

Railroad  Co.  v.  Bordenchecker,  70  N.  E.  Rep,  995 156 

Recard  v.  Penn.  R.  R.  Co.,  67  Atl.  Rep.  1040 143,  145 

Redman  v.  State,  33  Ala.  428 164 

Reg.  V.  Cavendish,  2  C.  &  K.  230 187 

Reg.  V.  Birchall,  4  F.  &  Fin.  Rep.  1087 186 

Rex  V.  Timmins,  7  Carr.  &  P.  Rep.  499 185,  188 

Reg.  V.  Jones,  22  L.  T.  217,  11  Cox.  C.  C.  544 188 


334  TABLE  OP  CASES  CITED. 

[References  are  to  pages.] 

PAOK. 

Reg.  y.  Jones,  2  Cox's  Crim.  Cas.  544 184 

Reg.  V.  Cook,  1  L.  D.  Raym.  143 181 

Reg.  V.  Murray,  5  Cox  C.  C.  509 188 

Reg.  V.  Swindall,  2  C.  &  K.  230 185,  188 

Rex  V.  Wells,  91  L.  T.  98 103 

Repe  V.  Elting,  89  Iowa  82,  56  N.  W.  Rep.  285,  26  L.  R.  A.  769. .     93 

Reynolds  v.  Buck,  103  N.  W.  Rep.  946 102,  226,  227 

Retterstrom  v.  Brainsford,  etc..  R.  Co.,  94  N.  W.  Rep.  882 156 

Ridge  V.  Penn.  R.  R.  Co..  58  N.  J.  Eq.  172,  43  Atl.  Rep.  275 158 

Richardson  v.  Danvers,  176  Mass.  413,  57  N.  E.  Rep.  688,  50  L.  R. 

A.  127,  79  Am.  St.  Rep.  330 10 

Robb  V.  State.  52  Ind.  218 164 

Robinson  v.  Louisville  R.  Co.,  112  Fed.  Rep.  484,  50  C.  C.  A.  357.  156 

Rothser  v.  Cosel.  39  Misc.  (N.  Y.)  337 211 

Roberts  v.  Parker,  117  Iowa  389,  90  N.  W.  Rep.  744,  57  L.  R.  A. 

764,   94  Am.   St.  Rep.   316 9 

Robinson  v.  Louisville  R.  Co.,  112  Fed.  Rep.  484,  5  C.  C.  A.  357. .   151 

Rowell  V.  Crothers,  52  At.  818;  76  Conn.  124 124 

Rochester  v.  Bull,  58  S.  E.  Rep.  766 129,  132 

Rupp  v.  Snyder  Automobile  Co.,  21  York  (Pa.)  177 252 


s. 


Sawyer  v.  Mitchell,  35  Supr.  Ct.  (Pa.)   69  247 

Sapp  V.  Hunter,  115  S.  W.  Rep.  463 132 

Scranton  v.  Laurel  Run  Turnpike  Co.,  14  Luz.  Leg.  Rep.   (Pa.) 

97     10,     15 

Scranton  v.  Hawley,  9  Lack.   (Pa.)   65 168 

Schmidt  v.  N.  J.  St.  R.  R.  Co.,  49  Atl.  Rep.  438 154 

Scofield  v.  Town  of  Poughkeepsie.  107  N.  Y.  Supp.  767 142 

Schultz  V.  Old  Colony  St.  Ry.,  193  Mass.  309,  79  N.  R  Rep.  873, 

8  L.  R.  A.  N.  S.  597.  118  Am.  St.  Rep.  502 120 

Schrunk  v.  St.  Joseph,  97  N.  W.  Rep.  946 

Seaman  v.  Mott,  110  N.  Y.  Supp.  1050 139 


TABLE  OF  CASES  CITED.  335 

[References  are  to  pages.] 

PAGE. 

Sears  v.  Seattle  Consul.  St.  R.  Co..  6  Wash.  227.  33  Pac.  Rep.  389.  151 

See  V.  Wormser,  113  N.  Y.  Supp.  1093 1^* 

Seaman  v.  Mott.  110  N.  Y.  S.  1040 ^^^ 

Shinkle  v.  McCuUough,  116  Ky.  960.  965 84.  85.     86 

Silverman  v.  New  York.  114  N.  Y.  Supp.  59 141 

Silberman  v.  Huyette,  22  Montgomery  Co.  L.  Rep.  39 129 

Simeone  v.  Lindsay.  65  Atl.  Rep.  778 HO.  113 

Smith  V.   O'Brien.   46   Misc.    (N.  Y.)    325,   94   N.   Y.   Supp.   673 

affirmed  103  App.  Div.  596 205.  207,  210 

Smith  V.  Dygert.  12  Barb.  (N.  Y.)  613 89.    90 

Smith  V.  Gardner.  11  Gray   (Mass.)   418 91 

Smith  V.  Smith.  2  Pick.  (Mass.)   621 100 

Smith  V.  Boon.  84  L.  T.  593 1^^ 

Smith  V.  Jackson  Tp.,  26  Pa.  Super.  Ct.  234 105 

Smith  V.  Associated  Omnibus  Co.,  Div.  C.  916 223,  281 

Snyder  v.  City  of  North  Lawrence,  8  Kan.  82 14 

Sowerby  v.  Wadsworth.  3  F.  &  F.  734 164 

Spoffard  v.  Harlow.  3  Allen  (Mass.)  176 93 

State  V.  Unwin,  68  Atl.  Rep.  110 122,  126 

State  v.  Cobb,  87  S.  W.  Rep.  551 ^^ 

State  V.  Swagerty.  102  S.  W.  Rep.  483,  203  Mo.  517,  10  L.  R.  A. 

(N.    S.)    601 "^^ 

State  V.  Thurston.  28  R.  I.  265,  66  Atl.  Rep.  580 16 

State  V.  Smith.  69  Atl.  Rep.  1061 16.  166 

State  V.  Collins,  16  R.  L  371,  17  Atl.  Rep.  131 9 

State  V.  Inhabitants  of  City  of  Trenton.  54  N.  J.  Law  (25  Vroom) 

92.  23  Atl.  Rep.  281 ^'       ^ 

State  V.  Goodwin,  82  N.  E.  Rep.  459 137,  181,  300 

State  V.  Fidler,  26  Tenn.  (7  Hump.)  502 164 

State  V.  Catchings,  43  Tex.  654. 164 

State  V.  Ness.  1  Ind.   (1  Cart.)   64 164 

State  V.  Wagston,  75  Mo.  107 164 

State  V.  Fleetwood.  16  Mo.  448 164 

State  V.  Burgett,  Smith  340 164 


336  TABLE  OF  CASES  CITED. 

[References  are  to  pages.] 

PAGE. 

State  V.  Battery,  6  Baxt.   (Tenn.)   545 164 

Strand  v.  Grunnell  Automobile  Garage  Co.,  113  N.  W.  Rep.  488 

128,  130,  137 

Starr  V.  Schenck,  25  Montg.  L.  Rep.  (Pa.)  18 142.  160 

Stein  V.  Lyon,  91  N.  Y.  App.  Div.  593 205 

Stewart  v.  Stone,  127  N.  Y.  500,  506 211 

Stewart  v.  Barach,  93  N.  Y.  Supp.   161 226,  227 

St.  Louis  Court  of  Appeals  in  O'Donnell  v.  O'Neil,  109  S.  W.  Rep. 

815    128 

Standard  Oil  Co.  v.  Hartman,  62  At.  805;  102  Md.  263 Ill 

Star  Omnibus  Co.,  London  (Limited)  v.  Tagg,   (Div.  Ct.) 302 

Stevenson  v.  U.   S.  Express  Co.,  Pa.   Leg.   Intel.,  July  3,   1908, 

Sup.    Ct 133 

Steele  v.  Burkhardt.  104  Mass.  59 93 

Strause  v.  Whittlesey,  41  Conn.  559 93 

Sterling  v.  Bowling  Green,  5  C.  C.  (N.  S.)  217,  16  Cir.  Dec.  581. .  9 


T. 

Talotuchin  v.  Metropolitan  St.  Ry.  Co.,  106  S.  W.  Rep.  548 281 

Tasker  v.  Farmingdale,  8  Me.  523,  27  Atl.  Rep.  464 116 

Taylor  v.  Goodwin,  4  Q.  B.  228 10,  12 

Templeton  v.  Williams,  24  Montg.  L.  Rep.  (Pa.)  192 204 

The  Texas,  134  Fed,  Rep.  909 49 

The  Commerce,  3  W.  Rob.  295 91 

The  European,  10  L.  R.  Prob.  Div.  99 100 

The  Fifth  Avenue  Coach  Co.  v.  City  of  New  York,  N.  Y.  Law 

Journal,  Jan.  23,  1908 300 

The  Wega.  Prob.  Div.  [1895]  156,  159 155 

Thompson  v.  Dodge,  58  Minn.  555,  60  N.  W.  Rep.  545,  546,  28  L, 

R.  A.  608,  49  Am.  St.  Rep.  533 9 

Thies  v.  Thomas.  77  N.  Y.  Supp.  276 230.  231 

Thomas  v.  Chicago,  etc..  R.  Co.,  86  Mich.  496,  49  N.  W.  Rep.  547. .  153 


TABLE  OF  CASES  CITED.  337 

[References  are  to  pages.] 

PAGE. 

Throughton  v.  Manning,  92  L.  T.  855 103 

Toledo  Elec.  St.  Ry.  Co.  v.  Westenhuber,  22  Ohio  Cir.  Ct.  Rep. 

67,  12  Ohio  Cir.  Dec.  22 151 

Towle  V.  Morse,  68  Atl.  Rep.  1044 116 

Town  of  Whitingham  v.  Bowen,  22  Vt.  317 40 

Trademark  Cases,  100  U.  S.  82   307 

Trout  Brook  Ice  Co.  v.  Hartford  Electric  Light  Co.,  59  Atl.  Rep. 

405,  77  Conn.  338 130 

Turley  v.  Thomas,  8  Carr.  &  Payne,  103 91 

Turner  v.  Hall.  64  Atl.  Rep.  1060 141 

u. 

U.  S.  V.  Colorado  &  N.  W.  R.  R.,  157  Fed.  Rep.  321 307 

U.  S.  V.  Sharp,  1  Pet.  C.  C.  Rep.  118 167 

Unwin  v.  State,  64  Atl.  Rep.  163 126 

Union  Pac.  R.  Co.  v.  Ruyicka,  65  Neb.  621,  91  N.  W.  Rep.  543..  153 

Unwin  v.  State,  64  Atl.  Rep.  113,  afflrmed  68  Atl.  Rep.  110 69,  122 

Upton  V.  Windham,  75  Conn.  288,  293 85 


V. 

VanHorn  v,  Burlington,  etc.,  R.  Co.,  59  Iowa  33,  12  N.  W.  Rep. 

752    156 

Volger  V.  Cent.,  etc.,  R.  Co.,  83  N.  Y.  App.  Div.  101,  82  N.  Y. 

Supp.  485  156 

Vonderhorst  Brewing  Co.  v.  Armhine,  56  Atl.  Rep.  833,  98  Md. 

406   246 


w. 

Walker  v.  Grant  Brothers  Automobile  Co.,  102  S.  W.  Rep.  25..  286 
Ward  V.  Brooklyn  Heights  Car  Co.,  104  N.  Y.  Supp.  95 119 


22g  TABLE  OF  CASES  CITED. 

[References  are  to  pages.] 

PAGE. 

Ward  V.  Chicago,  etc..  R.  Co.,  85  Wis.  601,  55  N.  W.  Rep.  771. .. .  152 

Watson  V.  State,  3  Ind.  123 164 

Welton  V.  Tanebourne,  Div.  Ct.  Eng.  873,  Vol.  XXIV,  Law  T.  Rep. 

Mo.  36,  p.  873   169 

Washington  Electric  Vehicle  Co.  v.  Dist.  of  Columbia,  19  App. 

Cas.   (D.  C.)    9 

Wayde  v.  Carr,  2  Dow.  &  Ry.  255 92 

Watts  V.  Stroudsburg  Passenger  Ry.  Co.,  34  Penn.  Co.  Ct.  Rep. 

377    31 

Walton   &   Co.    v.   The   Van-guard;    Motor-bus   Co.,    T.    L.    Rep. 

Vol.  XXX,  No.  3.,  p.  13,  Oct.  27,  1908 115 

Wayde  v.  Lady  Carr,  2  Dowl.  &  R.  255 95 

Welch  V.  Lawrence,  2  Chitty  262 100 

West  V.  N.  Y.  Transp.  Co.,  94  N.  Y.  Supp.  426 97 

Weston  V.  District  of  Columbia,  23  App.  Cas.   (D.  C.)  367 210 

Weiskopf  V.  Ritter,  97  L.  W.  Rep.  1120,  29  Ky.  L.  Rep.  1268..   129 

Whitman  v.  Fisher,  98  Me.  190,  58  Atl.  Rep.  914 105 

Willard  v.  People,  4  Scam.  Rep.  461 22 

Williams  v.  Holland,  6  Car.  &  P.  23 95 

Williams  v.  San  Francisco  &  N.  W.  R'way  Co.,  93  Pac.  Rep.  122. .  122 

WIstrom  V.  Redlick  Bros.,  92  Pac.  Rep.  1048 Ill 

Wilmott  V.  Southwell,  L.  T.  Rep.  Vol.  XXV,  No.  2,  p.  22,  Oct.  27, 

1908    265 

Wilson  V.  Rockland,  2  Harr.   (Del.)   67 89 

Winder  v.  Caldwell,  55  U.  S,  (14  How.)   434 307 

Winterbottom  v.  Wright,  10  M.  &  W.  109 257 

Wolcott  V.  Whitcomb,  40  Vt.  40.  41    40 

Wood  V.  Luscomb,  23  Wis.  287 95 

Wright  V.  Fleischman,  41  Misc.  Rep.  533,  85  N.  Y.  Supp.  62 90 

Wright  V.  Crane,  106  N.  W.  Rep.  71,  12  Det.  Leg.  N.  794 145 

Wynn  v.  Allard,  5  Watts  S.  (Pa.)  524 95 


TABLE  OF  CASES  CITED.  339 

[References  are  to  pages.J 


Y. 

PAGE. 

Yulgst  V.  Lebanon,  etc.,  R.  R.  Co.,  167  Pa.  St.  438,  31  Atl.  Rep. 

687  1^^ 

z. 

Zalotuchin  v.  Metropolitan  St.  Ry.  Co.,  106  S.  W.  Rep.  548 119 

Zulpher  v.  Camden,  etc.,  R.  Co.,  55  Atl.  Rep.  249 156 


INDEX. 


INDEX. 

[References  are  to  pages.] 

A. 

PAGE. 

Abolition  of  arbitrary  speed  limitations 24,  178 

Accidents    112,    113,  181 

Accidents  in  the  dark 93 

Accidental    killing 188 

Advantages  of  automobiles  over  other  carriages 35 

Advertising   on   automobiles 299 

Adverse  judicial  statementa 32,    33 

Age  limit  of  drirera 61 

Agencies  , 288 

American  tendencies  in  manufacturing 255,  256 

Amount  of  license  fees 79 

Animal  power  has  no  superior  rights 43 

Anticipation   of  danger 113 

Appearance  of  automobile   85 

Application  of  power  34 

Applicability  of  old  statutes 69 

Arbitrary  speed  limits  178 

Arrests   192,  193 

Arrests  at  night  197,  198 

Articles  left  in  taxicabs 276 

Assault  on  toll  gate  keeper 56 

343 


344  INDEX. 

[References  are  to  pages.] 

PAGE. 

Attempting  to  avoid   automobile    142 

Automobile     defined 1 

Auto  defined    ^ 


Auto-car    

Auto-carriage 


Automobile  line   "* 


Automotor 


4 


Autotruck     2 

Automobile   vehicle    3 

Automobile   car    ^ 

Automobile  mechanism   3 

Automobile  not  a  machine  merely 26 

Automobile   generic   name    1 

Automobile  self-propelling    2 

Automobile— a  hybrid  adjective— substantive,  etc 1 

Automobile  not  a  work  of  art 2 

Automobiles  as  household   effects 2 

Automobile    parts    1^ 

Antomobilism    defined 2 

Antomobilist     ^ 

Automobilist's  status    32 

Auto  driver   223 

Automobiles  are  of  great  speed   33 

Automobile  unsatisfactory    286 

Automobile  not  a  dangerous  machine 27 

Automobile  not  to  be  classed  with  railroads 27 

Automobile  is  vehicle  of  modern  times 18 

Automobiles  cannot  be  banished  from  highways 44 

Automobiles  are  legitimate  means  of  travel 44 

Automobiles  may  use  highways 47 

Automobiles  using  ferries  and  vessels 48,  49 

Automobile  not  a  carriage 11.  14 

Automobile  not  a  vehicle 14 

Automobile  is  a  vehicle 8 


INDEX.  345 

[References  are  to  pages.] 

PAGE. 

Automobile  is  a  carriage 5,  10,  12 

Automobile  a  pleasure  carriage 14 

Automobile  may  not  include  carriage  in  will 13 

Automobile  and  bicycle  distinguished  as  carriages 10 

Automobiles  as  carriers    38 

Automobile  uot  dangerous  per  se 24,  29,  30 

Automobile  no  more  dangerous  than  horse  and  carriage 29 

Automobiles  not  to  be  classed  with  bad  dogs,  vicious  bulls,  evil- 
disposed  mules,  and  the  like 30 

Automobiles  and  horse-drawn  vehicles  compared 31 

Automobile  like  a  carriage  and  pair,  is  harmless 28 

Automobile  more  dangerous  than  street  car 33,  34 

Automobiles    not   to    be    classed    with    locomotives,    gunpowder, 

dynamite  and  other  dangerous  agencies 30 

Automobile  no  more  dangerous  than  a  horse  and  carriage 25,  30 

Automobiles  standing  on  highways 101 

Avenue    41 

Avoiding  injury  109 


B. 

Bicycles  37 

Bicycles  have  equal  rights   45 

Bicycle  is  a  carriage  12,  13 

Bicycle  is  not  a  carriage  10 

Bicycle  is  not  dangerous   29 

Bicycle     policemen 198 

Boulevard     41 

Brake    28 

Breakdown  on  highway 134 

Bridges,  traveling  on  110 


346  ^NDEX. 

[References  are  to  pages.] 

c. 

PAGE. 

Car  defined   3 

C&rbnretter   17 

Care   in   driving    85,  231 

California  decision — important   51 

Carriages  for  persona   •  •  •  •  15 

Center  of  road   90 

Cliaracteriitici  of   antomobile 26,  34 

ChMsiB 17 

Chanfrenr   223 

Chauffeur  acting  contrary  to  authority 226,  227,   228,  229 

Chauffear's   anthority    to   bind  his    employer 234,   235, 

236,  237,  238,  239,  240 

Cbaaffenr      defined 223.  224 

Chauffeur's  duties  229,  230 

Chauffeur  driving  for  himself  247,  248,  249,  250 

Chauffeur  engaged  in  manual  labor  223 

Cbanffenr  pnrcbasing  inpplies 251,  252 

Cban«eur*.    rleht. 225,    232.  233 

Chauffeur  teaching   operation   of   automobile 243,  244 

Children    in   the   street 96,  97 

Citizenship — bearing  on  right  of  transit 311,  312 

Clasa  lesiilation 70.   72.   73,  76 

Classification   of   automobiles    37 

CoUisions     46,  95 

Collisions — contributory    negligence    95 

Commissions    • 288,  289 

Committees  on  public  safety  20 

Common  carrier  defined   38 

Commom   traTellnc   pace 166 

Compelling  privilege  of  using  turnpike 56 

Compliance   with    statutory    provisions 50,     87 

Computation  of  license  fees 79 


INDEX.  347 

[References  are  to  pages.] 

PAGE. 

Coneeptioa  of  highway  in  primitiTO  state  of  .ociety 42 

Condition  of  roads  290,  291 

49 
Congressional   legislation    

CO 

Connecticut  decision— important    

24 
Connecticut  legislation    

Contributory  negligence  as  defense  to  manslaughter 184,  185 

Contributory  negligence  of  pedestrian  1^^ 

Constitutional  law. 69,  72.  73.  75,  82.  102 

-  ^,  103.  177 

ConTiotions     • 

144 
Conviction  of  speeding   

125.    231,  232 

Corners ' 

Correlative  right  of  transit 315 

^       ,  204 

Courts   

Crandall  v.  Nevada,  6  Wallace  (U.  S.)  35 314.  315,  316,  317 

166 

Crimes    

Criminal   driving 181.   182.   186.187 

Criminal  responsibility  for  servants*  acts 167,  185.  186 

20 
Critical  legislative  period  


Crossings    

Crowded  streets  

Curb    

Custom  and  the  law  of  the  road. 
Custom  in  driving   


.100,  127 
....  112 
....  41 
....  89 
....     91 


D. 


87,  110,  124 
110 

178,  179 

28 


Damages 

Damages — future   profits    

Dangerous   driving 

Danger  of  moving  machinery  

Definition  of  automobile  in  New  Hampshire  law ^7 

Declaratory  statutes— law  of  the  road 

Defective    brake    

Defective  highways 


89 

28 

292 


348  INDEX. 

[References  aie  to  pages.] 

PAGE. 

Defective  roads 294 

Defective    title    of    act    ^^ 

Defect!  in  regiBtration  systems 59,  60 

Defending  speed  cases 191.  192,  193,  194,  195,  198,  199,  200 

Definitions  in  general 1 

Definitions  and  general  considerations 1 

Definitions  in  legislation 5 

Definition  of  street  in  New  York  ordinances  41 

Definition  of  automobile  in  New  Hamushire  law 7 

Definition  of  motor  cycle   7 

Definition  of  vehicle    8 

Degree  of  care  in  driving 230,  231 

Destmction  of  sign  posts 39 

Development  of  motor  carriage  19 

Deviation  from  law  of  the  road 92 

Disobedience  of  the  law  of  the  road 92 

Dismounting  from  street  car   146 

Drive     16 

Driving     230,  231 

Driving  in  crowded  streets 112 

Driving  on   railway  tracks   146 

Dne   care   in   driving 109,  110 

Due   care — evidence   of    115 

Duties    of    drivers 86,  107 

Duty  to  stop    87,  135 

Duty  of  motorist  towards  children   96 

Duty  on  imported  automobiles  2 

E. 

Easement  of  highway  embraces  what? 42 

Electric  street  cars    Ill 

Engine 17 

Engine  must  be  stopped  when 136 


INDEX.  349 

[References  are  to  pages.] 

PAGE. 

17,  265 

Engine  not  a  brake 

Engliih  Motor  Car  Act *_      ^^ 

E,..l  right.  ..  ..t.m.bm.t. ■-  -^^^    ^^^ 

Equipment  of  antomobiles 

Estimate,  of  speed-incompatible  facts 

150.  151,  152 
Estimates  of  speed— observers 

14o 

Evidence      ^^^ 

Evidence  that  vehicle  "  went  fast " 

115 

Evidence  of  due  care 

Evidence  of  frightening  horse   

5 
Evidence  of  meaning  of  terms  

Evidence  of  speed ^   ^^^ 

Evidence   of   speed— bias    

Evidence  of  speed— burden  of  proof  

,.  .  161 

Evidence   of   speed— distance    

Evidence  of  speed— distance   

Evidence  of  speed— imagination    

Evidence  of  speed— line  of  vision   

Evidence  of  speed— meeting  horses  

Evidence  of  speed— noise    cV  153 

Evidence  of  speed— observers— qualification   152, 

Evidence  of  speed— passengers  at  witness 

Evidence  of  speed— summary  and  conclusion 

Evidence  of  speed  under  English  law  

Evidence  of  speed— weight   

Evil  cannot  be  entirely  legislated  away 

Exaction  of  illegal  fees  and  fines   

,  143 

Excessive  speed   

Exclusion  of  automobiles  from  highways 

Excluding  automobiles  from  country  roads  at  night 36,     51 

Exclusion  from  turnpike   

Exclusion  of  automobiles  from  certain  places 

Exclusion    of    non-residents 

,.„„  170,   171,  172 

Excuses    for    speeding 


350  liMJu-A. 

[References  are  to  pages.] 

PAGE. 
Exemption  of  non-residents 80 

Exemption  of  non-residents  based  upon  reciprocity  82 

Extenuating  facts  in  defending  speed  cases 193 

Exploitation  of  automobiles   31 

F. 

Failure  to  jump    133 

Failure  to  turn  out   122 

Fairness  of  legislation  295,  296 

Fares    • . .  .277,  278 

Fear  from  automobiles   98 

Federal    measures    proposed 23 

Fees  and  fines    204 

Federal    control    over    motoring 303 

Ferries    and    vessels 48,     49 

Filing  registration  statement   57 

Filth  resulting  from  operating  automobiles 35 

Footman — rights   of    96 

Foreign  chauffeurs   281 

Frame   17 

Frightening  horses 35,   36,   85,  86,  128,  129,  130,  131 

Frightening  horses — contributory  negligence   132,  133 

Frightened  horse — breakdown   134 

Frightening  horses — failure  to  jump  133 

Frightening  horses — noise    132 

Fright  to  persons   97 

Future   legislation    298,  299 


G. 


Garage      205 

Oarage  defined   205 


INDEX.  351 

[References  are  to  pages.] 

PAGE. 

Garage    keeper 205.  206 

Garage  keeper's  rights    206 

Garage  keeper's  liabilities 207,  208 

Garage  keeper's  liability  for  articles  stolen 210,  211 

Garage  not  a  nuisance 203 


Garage,  when  a  nuisance 


205 


Gasolene-Keeping    and    selling 208,    209,  210 

General  duties  of  drivers  107,  108 

General  purposes  of  highways  and  streets 41 

Genus   highways    ^^ 


Good    tackle. 


100 


Giving  half  of  road   123 

Growth  of  law   1^ 

Guests     116.    117.  118 

H. 

Hackney    carriages 270 

Heavy   omnibuses    ' ' 

Highways    3* 

Highways  defined    ^^ 

Highways  and  roads  distinguished   39 

High'ways  are  open  to  new  uses 21,     22 

Hire  o£  automobiles 215 

Hire  of  automobiles — Servant's  acts   216 

Hire  of  automobiles — acts  by  third  parties 217 

Hire  of  automobiles — sale  by  hirer 217 

Hire  of  automobiles — owner's  rights  and  duties  217 

Hire    of    automobiles — repair 218 

Hire    of    automobiles — compensation    220 

Hire  of  automobiles — deviation  from  agreed  route 220,  221,  222 

Hirer's     duties 219 

Hirer's   rigkts    218 

Hiring  terminated 219.  220 


362  INDEX. 

[References  are  to  pages.] 

PAGE. 

Hire  of  automobiles — surrender  of  vehicle  220 

Historical     18 

History  of  power  vehicle  19 

Horse  drawn  vehicles    31 

Horse  committing  injury   133 

Horses,  unmanageable    134 

Household  effects  including  automobiles  2 

I. 

Identification    of    offender! 65 

Identity   of  defendant 196,   197 

Identification  of  person  excessively  speeding   168 

Ignorance     HI 

Ignorance  of  the  law   173,  174,  175 

Illegal   fees    204 

Illegal  police  method* 201 

niinoii  judicial  attitude 33 

Illinois    decision — important    53 

Illinois    law — damages    113 

Implied  exception  in  statutes  300,  301 

Imprisonment   for    speeding    21 

Imputed    negligence 118.     119.  120 

Inattention 115.  116.  188.  189.  190 

Incorrect  estimates  of   speed    153 

Indictment  for  failure  to  register   58 

Indictment  for  failure  to  stop   138 

Infants    driving    "2 

Injunction   against   garage   keeper    206 

Inoperative  provisions  of  Pennsylvania  law  77 

17 
Insurance    

Intention  in  violating  the  law 173 

Interstate  motoring 304,  305,  306,  307, 

308,  309,  310 


INDEX.  353 

[References  are  to  pages.] 

PAGE. 

Interstate  automobiling  and  interstate  commerce 23 

Interstate  commerce  306,  307,  308,  309,  310 

J. 

James    Watt    18 

Joy  rider   16 

Judge   Cooley's   writings    43 

Judicial  notice  of  automobile's  characteristics 36,  37 

Judicial  notice  of  the  law  of  the  road  89 

Judicial  notice  of  terms  used  3 

Jurisdiction    of    courts    204 

Jury — question    for    123 

K. 

Keeping  to  the  right   89 

Killing  passenger    188 

L. 

Labor— chauffeur    - 223 

Laxr  of  tlie  road 88 

Law  of  the  road — disobedience   92 

Law  of  the  road — heavy  vehicles 92 

Law  of  the  road — treble  damages  for  violating   124 

Law  keeps  up  with  improvements  and  progress 21,     45 

Law  of  the  road— when  highway  is  covered  with  snow 90 

lieaving    automobile 232 

Legal    definitions 5 

Legislation     20,  295 

Liabilities  of   drivers    87,  107 

Liability  of  employer 243 


354  l^E^- 

[References  are  to  pages.] 

PAGE. 

Liability  for  chauffeur's  acts    225,   226 

Idabllity  of  persona  in  tonnean 167 

Liability  of  parties  not  driving   167 

Liability  for  not  tnrning  out 123 

Licenaes     78 

License  fees    78 

License  fees  of  New  Jersey  law    79 

Idcenae  fee  not  a  tax 78 

Licensing     ^^ 

Light. 144.145.  146 

Light    locomotive 3 

Lighting  streets   292,  293 

Limitation  on  amount  of  license  fees    313 

Local  regulations  in  New  York  76 

M. 

Macliine   3,       6 

Making  tests  of  speed   195,  196 

Mandamus  compelling  use  of  turnpike  56 

Manslanglitep   183,  184.  186 

Manual  labor — cban£Fear  engaged  in 223 

Mannfactnreri  and  dealers 76,     77 

Manufacturer's  duties  and  responsibilities  256,  257.  258, 

259.  260.  261.  262 

Manufacture  of  automobiles   254.   255,  267.  268 

Manufacturer's  status 255 

Massachusetts   decision — important    51 

Massachusetts'   judicial   attitude    33 

Massachusetts  statute — law  of  the  road  126 

Blaster  and  serrant 101,  225,  226,  234, 

235,  236,  237,  239,  240,  248,  249,  250.  251 

Master   and   servant — English   law    244 

Master  and  servant — presumption  of  authority  244 


INDEX.  355 

[References  are  to  pages.] 

PAGE. 

Meeting  and  passing; S9,  121 

Meeting  and  passing — rule  in  England  and  Canada 89 

Meeting  and  passing — rule  in  United  States  89 

Meeting  horses — evidence  of  speed    161 

Missouri  law — validity '. 70 

Motive  power  as  affecting  status  of  automobile 34 

Motor    car 3 

Motor  car — meaning  in  English  statute  4 

Motor  car — meaning  in  English  act  3 

Motor    defined    4 

Motoring  defined  4 

Motors — various   kinds    4 

Motor  bicycle  is  a  carriage 10 

Motor   cycle     6 

Municipal  liability  for  defective  highways  104,  105 

Municipal    licensing 64,    68,    69,   73,   74,  75 

Municipal  regulations  in  New  York  68 

Municipal    taxation    75 

Mnrder    183 

Murdock  18 

N. 

Nathan  Read   18 

Nature  and  status  of  automobile 26 

Negligence    88,  91,   111,   114,   141,145 

Negligence  must  be  sboiirn 113 

Negligence  of  taxicab  drivers  279,  280,  281 

Negligent  driving 179,  180,  181 

New  Jersey  road  act 122,  126 

New  York  automobile  law  of  1904  23 

New  York  City  regulations 76 

New   York   law 299 

New  York  law — explained   70.    71 


356  ^^^^^- 

[References  are  to  pages.] 

PAGE. 

New  York  statute — validity    76 

New  means  of  transportation   43 

New  methods  of  travel  may  be  employed   22,     44 

New  methods  of  travel  on  highways   42 

Night    arrests 197,  198 

Night — vehicles   standing    114 

Nicholas   Joseph    Cugnot    ••     18 

Noise     86,  110,  132 

Noise — comparative    amount    161 

Non-residents 56,  75,  298 

Non-resident   provisions    81 

Notice   of   accidents    105 

Notice  of  defects  in  highway   105 

Notice  that  horses  take  fright  130 

Novel  appearance  of  automobiles  does  not  bar  them   45 

Nnisance — garage    205 

Numbers   on   lamps    145 

Number   tags    58 


o. 

Observers  may  give  estimates  of  speed 150,  151,  152 

Obstructing   police    169,  170 

Oliver   Evans    18 

Operation  and  effect  of  license  80 

Operation    of    public    automobiles    Ill 

Operation  of  taxicabs    279 

Operation  of   traction   engines    112 

Operation    on    highways    84 

Ordinary  care  of  hirer  of  automobile  216 

Origin  of  law  of  the  road  89 

Origin   of   term   *'  chauffeur  " 225 

Other    definitions     15 


INDEX.  357 

[References  are  to  pages.] 

PAGE. 

Overtaking  and  passing 93,  94,  95,  125 

Ownership  of  automobile 244,245 

P. 

Passengers  in  taxicabs — liability 279,   280,  281 

Passing  horses   1^1 

Payment  of  reasonable  toll  54 

Pedestrians     96,  139 

Pedestrian    class   the    weakest    182 

Pedestrian  crossing  streets 113,  140 

Pedestrians  must  look   141 

Pennsylvania    statute     '^'^ 


Pent  roads. 


40 


Personal   property    in   automobile    26 

Physical   injury  and   fright 99 

Pleasure    carriages 4,     37 


Policemen 


198 


Police    methods    201 

Police  pow^ers  of  state 67,  73 

Police  regulation    "^9 

Power  to  require  registration  65,  66 

Precise  uniform  legislation  impossible    24 

Preparing  defense  to  speed   cases    194,  195 

Presumption  in  case  of   collision 93,  123 

Price  of  automobile — recovery  back    285,  286 

Primary  purpose  of  streets  and  highways 41 

Prima    facie    negligence 113 

Prima  facie  negligence — disobeying  law  of  the  road  93 


Private   ways 


39 


Private   track  racing 165 

Prokibiting    reckless    driving 296,  297 

Propulsion  of  automobiles  and  other  carriages  distinguished 34 

Prokibiting  use  of  country  voads  at  nrgkt 36 


35S  INDEX. 

[References  are  to  pages.] 

PAGE. 

Proof   of   chanffenr'i   authority 245,   246,  247 

Prudence   in  management  of  automobile    85 

Pleading — master   and   servant    252,  253 

Public  automobiles Ill,  265,  266 

Public    automobile    defined    270 

Public    automobile    service    269 

Public   ways    39 

Punishment   for   violating   law    176,  177 

Purposes    of    highways     42,  43 

Purpose  of  registration   59,  60,  64 

Q. 

Qnadricyclei     37 

Quality  of  automobiles   255 

Questions  for  jury 141 

R. 

Racing     1S5 

Racing    illegal    164 

Racing — private    track    165 

Railroads  more  dangerous  than  automobiles  27 

Reasonable   care 46,  47,  109 

Reasonable  speed 142 

Reasonably  safe   speed    142 

Reciprocal  rights  and  duties  driving  Ill,  109 

Reciprocity    82 

Reciprocity   in   legislation    83 

Reciasion  of  contract  of  sale  of  automobile   287 

Reckless    driving     20 

Registration    57 

Registration    blanks 58 

Registration  by  corporations  60 


INDEX.  359 

[References  are  to  pages.] 

PAGE. 

Registration   by   manufacturers    57,  266 

Registration  by  partnerships    60 

Registration   in   New   Hampshire    60 

Registration    of    drivers    57 

Registration   of   owners    57 

Registration    systems 58,  59 

Regulation  of  antomobiling 22 

Regulation  of  automobiling  necessary   33 

Regulation  and  revenue  distinguished   75 

Regulation  of  hacks,  cabs  etc 69 

Repairs  to  automobile 212,  213,  214 

Replevin  of  automobile  1"^ 

Responsibility    for    frightening    horses    36 

Responsibility  when  on  wrong  side  of  road   92 

Revenue  and  regulation  22 

Richard  Trevitluck  1^ 

Ride    16 

Right  angle  crossings 127 

Rigbt  of  transit 22,  27,  83 

Right  of  interstate  transit 23,  310 

Right    of    way 48 

Right  to   use  highways 52,    53,  84 

Right    to    use    turnpike 54 

Rights  and  duties  of  travelers  46 

Rights  in  roads 41 

Rights   in   streets    41 

Rights  of  automobiles  on  highways   39 

Rights  of  drivers    107 

Rights  of  garage  keeper 206 

Rights  of  pedestrians 139 

Rights  on  ferries  and  vessels 48,     49 

Roads  defined 40 

Roadway    defined    40 

Road  roller  not  an  automobile  1 


360  ^NDEX. 

[References  are  to  pages.] 

PAGE. 

Roadworthiness    of    automobile 100 

Roger   Bacon's  sayings    19 

Runaway   horses    131 

Running  over  person's   foot    l-^l 

s. 

Safe   passage   of   vehicles    89 

Safety    of    roads 290 

Sale  of  automobiles   285 

Sale  of  automobile — measure  of  damages — defects    288 

Scope  of  license  80 

Search   lights    145 

Seasonably   turn   to   right        90 

Secret  financial  responsibility   266,  267 

"  Sellers  talk  "    286,  287 

Setting  apart  roads  free  from  automobile  travel   50 

Sign    posts 39 

Sigrnal  to  stop 136 

Signal  to  stop  unnecessary    137 

Sight-seeing  cars    38 

Signs  indicating  speed  rates   164,  165 

Sir    Isaac    Newton    18 

Skidding    115 

Smoke     35 

Smoke    nuisance    301,  302 

Species    streets    41 

Speed    86 

Speed   and  negligence    143 

Speed    at    crossings    164 

Speed    at   different   places    157 

Speed    at    night    143 

Speed    cases 191 

Speed  cases — points  in  defending   198,   199,  200 


INDEX.  361 

[References  are  to  pages.] 

PAGE. 
Speed  contests  illegal 21,  177 

Speed— evidence  of  chauffeur  or  operator   149 

Speed— high    rate    ^^^ 

Speed  in  built  up  sections   1*^^ 

Speed  limits   ^'^^ 

1  f;^ 
Speed — noise   

Speed  of  automobiles  and  horse  drawn  vehicles 31 

Speed  over  common  traveling  pace  1^^ 

Speed— proof  of ^^^ 

Speed  regulations   ^"^ 

Speed    tests    1^^'  ^^*^ 

Speed — time   consumed    1°^ 

Speed — witnesses    1^^'  -'■^-'- 

Speeding — aiding   and    abetting    1^^ 

Speeding  common  law  misdemeanor   163 

Speeding  misdemeanor  under  statutes   165 

Speeding — prosecution  on  more  than  one  charge   168,  169 

Speeding— violating  municipal  ordinances    169 

Stage  line    

Stages ^ 

Standing    on    highways 1^1 

State  and  federal  powers 303,  304 

State  and  municipal  regulations   64 

State  may  regulate  operation  of  automobiles  50 

State    regulation    304 

Status  of  garage  keeper 206 

Status  of  infant  automobilist   62 

Statute  may  be  read  to  jury   127 

Statutes    • 103,  126 

Statutes  requiring  driver  to  stop   137 

Statutory  age  limits  63 

Statutory    construction    300 

Statutory    definitions    5 

Statutory  definitions  should  be  framed  with  care 7 


362  INDEX. 

[References  are  to  pages.] 

PAGE. 

Statutory  meaning  of  word  "  road  "  40 

Statutory  right  to  use  highways    47 

Statutory  tolls  in  New  York   56 

Steam-coach  construction   19 

Stopping   automobile 135,   137,  138 

Stopping   automobile — indictment    138 

Stopping   engine 136 

Stopping  automobile  near  horses    135 

Stop  watch   evidence 202,    203.  204 

Street   cars   and   automobiles 146 

Street  car   passenger  hit    113 

Street  car  tracks    32 

Street   laborers — rights   of 142 

Streets     defined 40 

Striking  person  in   street   142 

T. 

Tags  in  Pennsylvania   63 

Taxation   75 

Taxicabs     38,  269 

Taxicab  drivers — liability  of  passengers  for  acts  of  279, 

280,  281 

Taxicab  is  a  hackney  coach  271,  272 

Taxicab    licenses    275,  276 

Taxicab  proprietors — rights  and  liabilities   276 

Taxicab  rules  and  regulations   281 

Taxicabs — disputes  over   fares    277 

Taxicab's  duty  to  carry    278,  279 

Taxicab  service — right  to  conduct    273 

Taxicabs — municipal    regulations — fares    273,  274,  275 

Taximeters      281,  282 

Taximeters — regulation   of    281,  282 

Taxinc  transit  illegal 22 


INDEX.  363 

[References  are  to  pages.] 

PAGE. 

Team — meaning  of  word  in  Maine 8 

Tendencies  in  judicial  decisions  24 

Tendencies  in  legislation   22 

Tendency  of  automobiles  to  frighten  horses  35 

Tests   of  speed    195,196 

Tlionglitless   inattention 115,   116,   188,   189,  190 

Tolls     54,     55 

Toll   bridges    55 

Toll  road  used  by  automobile  • 15 

Touring  automobiles 114 

Traction  engine 7,  112 

Traction  engine  must  register  in  New  Hampshire 61 

Traction  engine  is  an  automobile — New  Hampshire  law 2 

Trade   marks 260,  261 

Transmission-gear     17 

Transit  cannot  be  taxed 22 

Transit— right  of  310,  311,  312.  313 

Traveling    16 

Traveling  on  unfrequented  part  of  road 122 

Traveling  on  wrong  side  of  road  from  necessity  93 

Treble    damages    124 

Tricycles     37 

Turning  corners 125,  231,  232 

Turning  out   121 

Turning  to  right  of  center  of  road  90 

Turning  to  the  right — rule  not  Inflexible  91 

u. 

Unautborized  use  of  automobile 241,  242 

Unavoidable  accidents    112 

Uniform  laws   297 

Uniform   legislation    23 

Unlawful   speed    163 

Unlicensed  automobilist 61 


364!  INDEX. 

[References  aie  to  pages.] 

PAGE. 

Unusual   speed    187 

Use  of  word  "  Taxicab  " 271 

V. 

Validity  of  municipal  regulations   76 

Vehicles  driven  on  street  car  tracks  32 

Vehicle  includes  bicycle 9 

Vebicles  left  standing  at  nigbt 114 

Vehicle  run  upon  tracks  not  an  automobile  1 

Violation  of  constitutional  provisions   69 

w. 

Warranties  and  representations 256,   257, 

258,    259,    260,    261,    262,    285,  286 

Washing  automobile — domestic  use  of  w^ater 2 

Weights   and  measures — taximeters    282,   283,  284 

Weight,  power  and  speed   of  automobiles — due  care  in   driving 

107,  108 

"  Within  "  automobile — fire  insurance 17 

When  a  horse  is  about  to  become  frightened   131 

When  driver  may  pass  horse   131 

When   horses  are  beyond   control    134 

Wrong   side   of    road    122 

[Whole  Number  of  Pages,  390.] 


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